This week, inTrim v. Reward Zone USA LLC, the Ninth Circuit issued two separate opinions collectively affirming the dismissal of a claim brought under 47 U.S.C. § 227(b)(1)(A), based on the plaintiff’s receipt of unsolicited text messages. That statutory provision only applies to calls made using an “automatic telephone dialing system or an artificial or prerecorded voice,” though.
In a published opinion, the Ninth Circuit held that, even though a text can be a “call” for purposes of the statute, a text message, will generally not be within the scope of this provision, as the word “voice” “encompasses only audible sounds.”
In an accompanying unpublished opinion, the court rejected the plaintiff’s argument that a “sequential number generator” used by the defendant constituted an automatic telephone dialing system, finding it foreclosed by the Ninth Circuit’s earlier decision in Borden v. EFinancial. Anticipating this outcome, the plaintiff had filed a petition requesting the case be heard en banc initially, but the panel denied that motion as moot. It seems likely an en banc petition will follow.