9th Circuit affirms TCPA dismissal

Courts TCPA Appellate FCC

On August 8, the Ninth Circuit affirmed a district court’s dismissal of a cause of action under the TCPA, wherein the plaintiff alleged that the defendant sent her three mass marketing text messages that utilized “prerecorded voice[s]” even though there was no audible component.  Under the TCPA, it is unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using…an artificial or prerecorded voice” to a cell phone. In affirming the dismissal, the 9th Circuit reasoned that the ordinary meaning of “voice” encompasses only audible sounds, and that the context of the statute confirmed the ordinary meaning.  Specifically, it noted that Congress defined “caller identification information” as “information regarding the origination of a call made using a voice service or a text message sent using a text messaging service.” The court reasoned that if Congress intended “voice” to include inaudible text messages, the term “text message” would be surplusage and “Congress would have written the statute in a manner contrary to a basic canon of statutory interpretation.” The 9th Circuit went on to reject plaintiff’s remaining arguments, including plaintiff’s legislative history and FCC deference arguments because the statute was unambiguous.