NOT FRIVOLOUS BUT WRONG: Text Messages Are Still Not Voices
Good news! At least as of now…
So back in 2021, Jay Edelman was granted leave of court to file a complaint alleging an extremely dangerous argument that text message “chatbot” constitutes a prerecorded voice. Risher v. Adecco, No. 19-CV-05602-RS, 2021 WL 9182421 (N.D. Cal. Sept. 17, 2021)
Why is this extremely dangerous? Well, if they were to succeed then every text message, even if ATDS was not utilized, would be subject to the TCPA.
This would open the floodgates for a massive number of lawsuits, but so far, the courts have been consistent with shooting this argument down. See Mina v. Red Robin International, Inc., Case No. 20-cv-00612-RM-KLM (August 18, 2022, D. Col.); see also Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., No. 3:19-CV-592 (JAM), 2022 WL 2802347 (D. Conn. July 18, 2022); Eggleston v. Reward Zone USA LLC, 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928 (C.D. Cal. January 28, 2022).
The Northern District of California followed suit here in Risher ruling that text messages are not “voices”—meaning that a text message cannot violate the provision of that TCPA prohibiting unsolicited calls made using an “artificial or prerecorded voice.” No. 19-CV-05602-RS, 2022 WL 17082667 (N.D. Cal. Nov. 18, 2022).
Mr. Risher’s argument here was that, yes, these texts did not have a “voice” as in audible spoken words, but the “chatbot” used was meant to “create the impression of an interactive human ‘voice.’”
The Court disagreed with Mr. Risher’s “metaphorical voice” argument here. They held simply that text messages are not considered “voices.” This is consistent with other courts finding that the language of the TCPA should be given its ordinary meaning.
This view of the interpretation is strengthened by the use of the word “prerecorded.” As to record is “to convert sound or visual scenes into permanent form.”
The Court dismissed this claim for relief without leave to amend.
The Northern District was a lot more generous here—going so far as to call the argument “not frivolous”—than the Central District was in Eggleston which was the first in the nation to rule text messages are not prerecorded voices. In Eggleston, this argument was called “beyond the bounds of common sense.”
So at least for now, we have consistency in various jurisdictions, and it stands that text messages do not fall under the provision prohibiting unsolicited calls using an “artificial or prerecorded voice.”
However, heed the Czar’s warning: “They’ll keep filing until they find the right combination of facts in the right court with the right opposing counsel.”
What remains of the Risher class action lawsuit is a single claim for violation of the National DNC Registry provision of the TCPA. Risher is claiming Adecco violated the TCPA by sending text messages inquiring about his interest in a potential employment opportunity. Now, Mr. Risher admittedly submitted his information back to Adecco back in 2008 when he was actually seeking employment. These allegedly illegal messages were sent 11 years after this in 2019. So, it will be interesting to see what ultimately happens here since prior consent may have been given in 2008.