In Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264, at *3–4 (9th Cir. Aug. 8, 2023), the Court of Appeals for the 9th Circuit held that to be a prerecorded voice message under the TCPA, the message must be audible.  Prerecorded text messages which have no sound component are not voice messages within the statute’s meaning even if they are “an instrument or medium of expression”–one of the possible dictionary definitions of “voice.”

The ordinary meaning of “voice” when the TCPA was enacted, see Perrin, 444 U.S. at 42, 100 S.Ct. 311, was a “[s]ound formed in or emitted from the human larynx in speaking,” Voice (def. 1a), Oxford English Dictionary (2d ed. 1989); see also Voice (def. 1a), Webster’s Ninth New Collegiate Dictionary (1991) (“sound produced by vertebrates by means of lungs, larynx, or syrinx”). Other definitions also show that the ordinary meaning of voice relates only to audible sound. For example, the primary definition of “vocalize” is “to give voice to: UTTER; specif[ically]: SING.” Vocalize (def. 1), Webster’s Ninth New Collegiate Dictionary. To take another example, “[v]iva voce” is Latin for “[w]ith the living voice; by word of mouth.” Viva voce, Black’s Law Dictionary (6th ed. 1990). The phrase “is equivalent to ‘orally’ ” and “[a]s descriptive of a species of voting, it signifies voting by speech or outcry.” Id.; see also Voice vote, Webster’s Ninth New Collegiate Dictionary (“a parliamentary vote taken by calling for ayes and noes and estimating which response is stronger”). To be sure, Trim accurately notes that “voice” can also be used symbolically. For example, “voice” can be defined as an “[u]tterance or expression,” Voice (def. 1f), Oxford English Dictionary, or as an “instrument or medium of expression,” Voice (def. 3), Webster’s Ninth New Collegiate Dictionary. However, “[t]hat a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense.” Taniguchi, 566 U.S. at 568, 132 S.Ct. 1997 (emphasis in original). Such is the case here. The more symbolic definitions are listed well after the primary ones in the dictionaries. Moreover, the examples in the dictionary illustrating a symbolic sense of “voice” that do not involve an audible component only invoke inapplicable poetic or literary settings: “the courage which gave Voice to its creed”; “hero-worship, which found voice in song”; and “the party [that] became the voice of the workers.” Voice (def. 1f), Oxford English Dictionary; Voice (def. 3), Webster’s Ninth New Collegiate Dictionary. Trim fails to provide any evidence that Congress intended an “idiosyncratic definition,” see Wis. Cent. Ltd., 138 S. Ct. at 2073, and we presume Congress intended to legislate the primary meaning of voice, see Holliday, 498 U.S. at 57, 111 S.Ct. 403, which requires an audible component. The context of the statute bolsters that Congress did not understand the meaning of voice to include a metaphorical component such as medium of expression, see Brown & Williamson, 529 U.S. at 133, 120 S.Ct. 1291, because the remainder of 47 U.S.C. § 227 confirms that Congress used “voice” in the standard way. The TCPA defines “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.” 47 U.S.C. § 227(e)(8)(A). If voice calls encompassed text messages, the inclusion of the term text message would be surplusage, and Congress would have written the statute in a manner contrary to a basic canon of statutory construction, that a statute should be interpreted “so as not to render one part inoperative.” Pueblo, 472 U.S. at 249, 105 S.Ct. 2587.  This canon is misunderstood by Trim, because she alleges that, under the most natural reading of the word voice, the “artificial or prerecorded voice” component of the statute would be superfluous as applied to texts. Trim’s appeal to the superfluity canon is unavailing, because, at a minimum, “artificial or prerecorded” applies to voice calls. See Hill v. Kemp, 478 F.3d 1236, 1247 (10th Cir. 2007) (“Congress is presumed to have added these words for some purpose.”) (emphasis added).4 Likewise, Trim’s argument that interpreting voice as involving an audible component would make the term “artificial” surplusage, fails because an artificial voice is a sound resembling a human voice that is originated by artificial intelligence. See, e.g., MIT TECHNOLOGY REVIEW, Karen Hao, AI voice actors sound more human than ever—and they’re ready to hire, (July 9, 2021). Because Trim’s arguments regarding the statutory context fail to overcome plain meaning, our “sole function” is to enforce the statute according to its clear terms, under which no text message sent by Reward Zone to Trim used a prerecorded voice in violation of 47 U.S.C. § 227(b)(1)(A). See Lamie, 540 U.S. at 534, 124 S.Ct. 1023.