76 F.4th 1157
9th Cir.2023Background
- Plaintiff Lucine Trim received at least three unsolicited marketing text messages from Reward Zone directing her to a promotional website; she never provided her number to Reward Zone.
- Trim sued on behalf of a putative class under the TCPA, alleging two alternative § 227(b)(1)(A) theories: (1) messages were sent using an automatic telephone dialing system (ATDS) and (2) messages constituted “artificial or prerecorded voice” calls.
- The district court dismissed the ATDS claim for failure to plead an ATDS and dismissed the prerecorded-voice claim, concluding text messages did not use a “voice.”
- The district court entered partial judgment under Rule 54(b); Trim appealed the prerecorded-voice dismissal.
- The Ninth Circuit reviewed de novo and held that the term “voice” in § 227(b)(1)(A) refers to audible sound; non‑audible text messages therefore cannot be “prerecorded voices.”
- The court rejected Trim’s arguments based on dictionary definitions, statutory surplusage, legislative history, and FCC interpretations, and affirmed dismissal of the second cause of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unsolicited text message can be an “artificial or prerecorded voice” under 47 U.S.C. § 227(b)(1)(A) | "Voice" may include non‑audible, symbolic senses (e.g., "instrument or medium of expression"); prewritten automated texts are therefore prerecorded voices | "Voice" means an audible sound (ordinary meaning); text messages lack an audible component and so are not prerecorded voices | "Voice" denotes audible sound; texts without audio are not prerecorded voices — plaintiff loses |
| Whether treating "voice" as audible would render other statutory terms superfluous | If "voice" excludes texts, the artificial/prerecorded-voice phrase would be redundant or overlap with other prohibitions | The modifiers "artificial" and "prerecorded" sensibly apply to voice calls; texts can carry audio (e.g., MMS) and the statute’s separate terms have independent work | Court finds no fatal surplusage; context confirms distinct terms and limits "voice" to audible sounds |
| Whether deference to FCC interpretations requires a broader reading of "voice" to include texts | FCC has treated texts as "calls" under the TCPA; agency views support reading "voice" to encompass texts | Statute is unambiguous so no Chevron deference; FCC itself distinguishes voice calls and text calls, undermining plaintiff’s claim | No deference because statutory language is unambiguous; FCC precedent does not support reading texts as prerecorded voices |
Key Cases Cited
- Lamie v. United States Tr., 540 U.S. 526 (court enforces clear statutory language)
- Perrin v. United States, 444 U.S. 37 (use ordinary meaning of undefined statutory terms at time of enactment)
- Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (require persuasive proof before adopting idiosyncratic definitions)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (read statutory words in context of the whole statute)
- Robinson v. Shell Oil Co., 519 U.S. 337 (plainness determined by language and context)
- Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (do not adopt unusual definitions absent clear congressional intent)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (discussed FCC interpretation of "call" and the distinction between text and voice calls)
- Hill v. Kemp, 478 F.3d 1236 (recognizes that modifiers like "artificial" and "prerecorded" have force and purpose)