Ninth Circuit Decides that Text Messages are not “Voices” Under the TCPA: What This Means for Telemarketing through Text Messages
On August 8, the federal court of appeals for the Ninth Circuit ruled that text messages do not count as prerecorded “voices” under the Telephone Consumer Protection Act (TCPA) because “the text messages did not use prerecorded voices under the [TCPA] because they did not include audible components.” In reaching this conclusion, the court found secondary dictionary definitions of “voice” as a medium of expression, which do not require expressions to be conveyed orally, inapplicable to the TCPA’s prohibition against certain forms of telemarketing without the customer’s (or potential customer’s) proper consent. The full text of the decision can be found on the court’s website.
Although the Ninth Circuit’s ruling eliminates plaintiff’s proffered cause of action against “unwanted” text messages, telemarketers must still comply with other TCPA restrictions on telemarketing text messages.
TCPA Restrictions on Telemarketing and Text Messages
The TCPA prohibits most telemarketing calls that use either an “automated telephone dialing system” or an “artificial or prerecorded voice” without the called party’s “prior express consent,” or “prior express written consent,” depending on the purpose of the call. Generally, informational calls and debt collection calls require prior express consent, while marketing calls require prior express written consent. A text message is a “call” for purposes of 47 U.S.C. §§ 227(b) and 227(c)’s Do-Not-Call rules. The issue on appeal before the Ninth Circuit was whether a text message falls within the TCPA’s definition of a “prerecorded voice” message. The answer is “no,” according to the Ninth Circuit.
The Ninth Circuit’s Decision
The Appellant, Lucine Trim, joined a class action lawsuit against Reward Zone — a website that promises free samples for those who sign up for it — for sending out unsolicited text messages in alleged violation of the TCPA. The court rejected all her attempts to broaden the definition of a “voice” to include text messages, concluding that “Congress clearly intended ‘voice’ in [the TCPA] 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.” In so doing, it explained that there is no evidence that Congress had an “idiosyncratic definition” of the word “voice” in mind when it drew up the TCPA, and the primary meaning of “voice” requires an audible component. Because the court found the statutory definition of a prerecorded “voice” to be unambiguous, it gave no deference to the Federal Communications Commission’s interpretation that a text message counts as a call under the TCPA: reaffirming longstanding precedent that agency interpretation matters to courts only if the statute at issue is unclear.
Operational Implications of the Ninth Circuit’s Ruling
Although the Ninth Circuit’s decision is a victory for Reward Zone, it does not automatically give businesses the green light to send unsolicited text messages without legal restrictions. The senders must still comply with all other restrictions as noted above, and regulators continue to enforce specific recipient consent requirements for the topics at issues. For example, they are investigating and prosecuting non-specific consents obtained by lead generators that have consent for one vendor selling one product or service, which does not extend to other lead purchasers.
Additionally, while the Ninth Circuit’s jurisdiction spans much of the west coast, its decisions do not bind courts elsewhere. Therefore, it is possible that federal courts in other parts of the country could adopt a broader definition of “voice,” that aligns more with the FCC’s position that text messages count as calls. Thus, we continue to recommend obtaining proper consent for all voice and text messaging outreach to both current and prospective customers. Further, companies that purchase customer leads must have their own permission to send marketing texts.
The CommLaw Group Can Help!
If you have any questions about the Ninth Circuit’s decision or your company’s broader telemarketing consent obligations under the TCPA, please contact Robert H. Jackson, Esq., at (703) 714-1316 or email@example.com, or Linda G. McReynolds, Esq., at (703) 714-1318 or firstname.lastname@example.org.
 Some states require express consent even for text messages sent manually.