Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.” See Trim v. Reward Zone USA LLC, — F.4th –, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023).
The appeal arose from Eggleston v. Reward Zone USA LLC, 2022 WL 886094, at *1 (C.D. Cal. Jan. 28, 2022). There, the plaintiff alleged she had received text messages from Reward Zone containing “spam advertisements and/or promotional offers.” Id. She brought TCPA claims against Reward Zone, seeking to certify a class of persons “who received any unsolicited text message sent using an [automatic telephone dialing system] or an artificial or prerecorded voice from [Reward Zone].” Trim, 2023 WL 5025264 at *1.
The district court dismissed the claims with prejudice, ruling that the plaintiff failed to plead the use of an automatic telephone dialing system and that the text messages alone could not sustain a TCPA claim because they did not involve an “artificial or prerecorded voice” as required by the statute. Eggleston, 2022 WL 886094, at *6. The court dismissed two other TCPA claims without prejudice.
Plaintiff amended her complaint and sought leave to appeal the TCPA dismissals, which was granted. On appeal, Plaintiff argued that the text messages qualified as voice recordings under the statute “because one definition of ‘voice’ in Meriam Webster’s dictionary is ‘an instrument or medium of expression.’” Trim, 2023 WL 5025264at *3. The Ninth Circuit disagreed, finding that even though “‘voice’ can be used symbolically” there was no evidence that Congress intended an “idiosyncratic definition,” and an overwhelming number of dictionary definitions make clear that the ordinary meaning of “voice” relates only to audible sounds. Id. at *3-*4.