California federal court rejects plaintiff’s attempt to circumvent Facebook
In April 2021, the Supreme Court dealt a massive blow to Telephone Consumer Protection Act claims based on automatic telephone dialing systems restrictions in its Facebook, Inc. v. Duguid ruling. You can read more about the Facebook decision here. In short, Facebook significantly narrowed the definition of “automatic telephone dialing systems,” thereby eliminating TCPA liability for voice calls—or text messages—produced by those systems. Facebook, however, did not limit liability for calls that used a prerecorded or artificial voice. But because text messages do not use prerecorded or artificial voices, Facebook was considered to largely (but not completely) wipe out TCPA liability for text messages.
Not according to the TCPA plaintiff’s bar. Since Facebook, the TCPA plaintiff’s bar has introduced a novel argument to bring all text messages back within the TCPA’s scope. Their theory—relying on strained dictionary definitions—suggests that text messages are actually prerecorded voice calls (and thus subject to the TCPA) because they are written in advance (i.e., prerecorded) and a “voice” is simply any medium of expression.
Recently, in Eggleston v. Reward Zone USA LLC, that argument was addressed for the first time. It did not go well for the plaintiff. In granting the defendant’s motion to dismiss, the court had a blunt response: “Plaintiff’s interpretation is simply beyond the bounds of common sense.” The court noted that the definition on which plaintiff relied is “only the tertiary definition of ‘voice’.” Even then, the plaintiff mischaracterized the meaning, which carries a metaphorical or symbolic connotation (i.e., the “voice of the workers”). It also pointed out that plaintiff’s sweeping interpretation would lead to absurd results. The court gave one example:
Consider an ordinary individual who wants to invite ten guests to a party; she sends a text message to the first invitee, and then, to save time, copies that text and pastes it into messages to the other nine. Because the messages to the other nine were "prerecorded" (i.e., set down in writing ahead of time) and, in Plaintiff’s interpretation, the messages constituted a ‘voice,’ this would fall within the statute's prohibition. It nearly goes without saying that Congress did not intend this sort of result in passing the TCPA to crack down on mass commercial solicitations that used automated telephonic technology.
The court also rejected plaintiff’s attempt to broaden the definition of an ATDS post-Facebook. The issue centers around a question arguably left open by Facebook: what it means to use a random or sequential number generator (ROSNG) to either store or produce phone numbers. Under the plaintiff’s interpretation, an ATDS is any system that uses a ROSNG to index phone numbers in a database or select them from an indexed database. Not so. The court held that a dialing system must use a ROSNG to generate the phone numbers themselves—rather than to index or select phone numbers from an existing database—to qualify as an ATDS. Eggleston is consistent with other cases addressing that issue, giving teeth to Facebook’s limitations on an ATDS (or at least not dulling them).
Of course, text messages still can be subject to the TCPA (or state law) if they use certain technology or are sent to a number on a do not call list. But Eggleston helpfully limits the TCPA’s contours and “the bounds of common sense.”
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