Huge huge TCPA case out of the Ninth Circuit yesterday–and FINALLY some good news for TCPA defendants. Unfortunately, however, there is a catch so stay with me until the end.
In Trim v. RewardsZone the Ninth Circuit Court of Appeals considered whether a text message triggered the TCPA’s “recorded voice” provision. This is a critical question because, if so, the TCPA’s regulated technology provisions would automatically apply to text messages–meaning a company sending a text would always need either express consent, or written express consent, depending on the nature of the text.
Under current federal law a text is only actionable if it is sent to a number on the national DNC list for marketing purposes, or if it is sent using an automated telephone dialing system (ATDS.) The Plaintiff in Trim argued that texts should be treated as prerecorded voice messages under the TCPA–which would mean any text would be come actionable under the statute.
A win for the Trim Plaintiffs would have had a massive impact on companies sand non-profits–like political campaigns– that use text messages without consent. But the Ninth Circuit rejected the Plaintiff’s approach.
Specifically the Court found the use of the word “voice” in the TCPA was not symbolic or metaphorical. Instead the Court turned to the dictionary and determined a VOICE literally has to be used to deliver a message before a text becomes actionable:
The ordinary meaning of “voice” when the TCPA was
enacted, see Perrin, 444 U.S. at 42, was a “[s]ound formed
in or emitted from the human larynx in speaking,” Voice
(def. 1a), Oxford English Dictionary (2d ed. 1989)); see also
Voice (def. 1a), Webster’s Ninth New Collegiate Dictionary
(1991) (“sound produced by vertebrates by means of lungs,
larynx, or syrinx”). Other definitions also show that the
ordinary meaning of voice relates only to audible sound. For
10 TRIM V. REWARD ZONE USA LLC
example, the primary definition of “vocalize” is “to give
voice to: UTTER; specif[ically]: SING.” Vocalize (def. 1),
Webster’s Ninth New Collegiate Dictionary.
And in the end the Court holds:
We hold that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound.
Except, hold on a second.
While this ruling is fantastic for folks using regular old SMS messages, there is a real cautionary point here. Many folks have begum using MMS messages and other forms of communication that may embed a voice for a video. I have been asked many times whether thee messages trigger the regulated technology provisions of the TCPA (227(b)) and I have told folks to be cautious but could not point to any caselaw. But now, unfortunately or fortunately, I can. Check this:
We hold that these text messages did not use prerecorded voices under the TCPA, because they did not include audible components.
This provisions seems to suggest that although the “regular” text message at issue in Trim was not a prerecorded voice message, other messages that did include an “audible component” would trigger the statute.
That makes Trim a double edged sword for businesses. They need to be cautious when sending texts and other forms of messages that might include an audible notification and recognize the standard rules permitting texts may not be so generous when it comes to messages with sound or video files embedded or linked. SO be cautious!
But let’s end with the positive. Another bizarre theory by the Plaintiff’s bar has now bit the dust and we can all start a day a bit safer in TCPAWorld.