Recent 9th Circuit TCPA decision shows limits of applying old statutes to newer technology

The 9th Circuit recently rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, when it held that promotional text messages not containing audio could not violate the TCPA's prohibition against sending messages with "an artificial or prerecorded voice." See Trim v. Reward Zone USA LLC, -- F.4th --, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023). Over the years, courts have been willing to apply the TCPA to technologies developed after the Act's passage. But Trim shows there are limits to the amount of latitude courts will extend.

The TCPA makes it unlawful to "make any call," with limited exceptions, "using any automatic telephone dialing system or an artificial or prerecorded voice." 47 U.S.C. § 227(b)(1)(A)(iii). Before Trim, the 9th Circuit in Satterfield v. Simon & Schuster, Inc. extended the TCPA's reach to text messages when it interpreted "call" to encompass texts. 569 F.3d 946 (9th Cir. 2009). "Congress could not have spoken clearly" on the issue of whether texts were "calls," the court noted, because the TCPA "was enacted in 1991 when text messaging was not available." Id. at 954. Because the TCPA did not define "call," the court looked to the TCPA's purpose and FCC guidance. The court found that the Act's purpose - "to protect the privacy interests of telephone subscribers" - supported interpreting "call," as the FCC had, to encompass texts. Because dictionaries defined "call" to mean "to communicate with ... a person by telephone," and because it was "undisputed that text messaging is a form of communication used primarily between telephones," the court concluded that the FCC's interpretation was reasonable and afforded it deference.

Later decisions, with Trim as the most recent example, have been less willing to sweep newer technology into the TCPA's reach. Two years ago, in Facebook v. Duguid, the Supreme Court rejected a broad reading of "automatic telephone dialing system," a defined term in the TCPA, that would have swept in more than devices capable of storing or producing a phone number using a random or sequential number generator - a long obsolete technology. 141 S.Ct. 1163 (2021). Justice Sotomayor, writing for a unanimous Court, said that "[e]xpanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel." Id. at 1171. See also Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022) (applying Duguid and narrowly construing "automatic telephone dialing system" under TCPA).

The 9th Circuit in Trim was similarly unwilling to extend the TCPA further. The issue was whether promotional text messages plaintiff received "use[d] prerecorded voices under the TCPA." 2023 WL 5025264, at *1. Like the term "call" at issue in Satterfield, the TCPA does not define "voice." Plaintiff argued that the text messages qualified as voice recordings "because one definition of 'voice' in Merriam Webster's dictionary is 'an instrument or medium of expression.'" Id. at *3. The 9th 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 made clear that the ordinary meaning of "voice" relates only to audible sounds. Id. at *3-*4. Because the court concluded that this interpretation was "clear[]," id. *3, it found plaintiff's invocations of legislative history, statutory purpose, and agency deference "unpersua[sive]," id. *4. It remains to be seen whether other courts across the country will follow the 9th Circuit's lead in Trim. Additionally, Trim left open the possibility that some text messages might use "artificial or prerecorded voice[s]" under the TCPA. One thing is certain - as technology continues to rapidly evolve, courts will continue to grapple with whether new technology fits neatly into existing legislation.