In Loyhayem v. Fraser Fin. & Ins. Servs., No. 20-56014, 2021 U.S. App. LEXIS 23660, at *2-8 (9th Cir. Aug. 10, 2021), the Court of Appeals for the 9th Circuit held that a TCPA plaintiff adequately pleaded a claim for relief for a call that left a pre-recorded message.
The plaintiff in this case, Jonathan Loyhayem, filed this action under the TCPA after receiving a call to his cell phone that, he contends, violated the statutory provision just quoted. According to Loyhayem’s complaint, the caller left a pre-recorded voicemail message . . .characterize[d] . . as a “job recruitment call,” and he alleges that it was made using both an automated telephone dialing system and an artificial or pre-recorded voice. He also alleges that he did not expressly consent to receiving calls of this type from Fraser Financial. In the ruling under review, the district court dismissed Loyhayem’s action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The court held that the TCPA and the relevant implementing regulation, 47 C.F.R. § 64.1200, do not prohibit making job-recruitment robocalls to a cellular telephone number. The court read the Act as prohibiting robocalls to cell phones only when the calls include an “advertisement” or constitute “telemarketing,” as those terms [*4] have been defined by the Federal Communications Commission (FCC). § 64.1200(f)(1), (13). Since Loyhayem admitted that the job-recruitment call he received did not involve advertising or telemarketing, the court concluded that he had not adequately pleaded a violation of the TCPA. Loyhayem challenges that ruling on appeal.
The Court of Appeals reversed, explaining that the district court misread both the TCPA and the implementing regulation.
As for the Act itself, it does not prohibit making robocalls to cell phones only if the calls involve advertising or telemarketing. The applicable statutory provision prohibits in plain terms “any call,” regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called. 47 U.S.C. § 227(b)(1)(A)(iii).1 Loyhayem adequately alleged that the call he received was not made for emergency purposes, see 47 C.F.R. § 64.1200(f)(4), and that he did not expressly consent to receiving it. So, at least as far as the statute is concerned, Loyhayem has stated a valid claim for violation of the TCPA. Our review of the FCC’s implementing regulation leads to the same conclusion. . . . Loyhayem adequately alleged facts establishing a violation of this provision as well. The portion of the regulation that he contends governs here, subsection (a)(1)(iii), prohibits “any telephone call” made to a cell phone—again, regardless of content—unless the call was made either for emergency purposes or with the prior express consent of the person being called. As noted, Loyhayem has alleged facts plausibly suggesting that the call he received did not involve an emergency and was not made with his prior express consent. Thus, nothing in the regulation supports dismissal of Loyhayem’s action at the motion-to-dismiss stage. The district court appeared to reach a contrary conclusion by relying on the caveat alluded to earlier. . . .For robocalls involving advertising or telemarketing, paragraph (a)(2) requires prior express written consent, whereas the calls covered by paragraph (a)(1) require prior express consent, which may be given either orally or in writing. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7971 (2015). The district court read paragraph (a)(2) as effectively removing robocalls to cell phones from the scope of the TCPA’s coverage unless the calls involve advertising or telemarketing. That is an incorrect reading of the regulation. The FCC amended 47 C.F.R. § 64.1200 to add paragraph (a)(2) in 2012. Before the amendment, paragraph (a)(1) read in all material respects just as it does today. It governed all robocalls to cell phones, and it required then, as it does now, that non-emergency robocalls be made with the “prior express consent” of the party being called. See 47 C.F.R. § 64.1200(a)(1)(iii) (2012). The FCC added paragraph (a)(2) to impose a heightened consent requirement for the subset of robocalls that involve advertising or telemarketing because the agency determined that, as to those calls, the existing consent requirements had proved ineffective in protecting consumers’ privacy interests. 77 Fed. Reg. 34,233, 34,235, ¶ 7 (June 11, 2012). At the same time, the FCC made clear that it was maintaining the existing consent requirement found in paragraph (a)(1) for all other robocalls made to cell phones. See id. at 34,236, ¶ 11 (noting that the Commission was “maintain[ing] the existing consent rules for non-telemarketing, informational calls”); id. ¶ 12 (noting that “section 227(b)(1)(A) of the Act and its implementing rules continue to require some form [*8] of prior express consent for autodialed or prerecorded non-telemarketing calls to wireless numbers”). The district court thus erred by overlooking paragraph (a)(1) of § 64.1200 and focusing exclusively on paragraph (a)(2). Loyhayem did not allege that the call he received involved advertising or telemarketing, but that simply means the heightened written consent requirement imposed by paragraph (a)(2) does not apply. HN3 Loyhayem’s case is still governed by paragraph (a)(1), which requires that prior express consent have been given either orally or in writing. Loyhayem adequately alleged that he did not consent orally or in writing to receiving Fraser Financial’s call. His factual allegations suffice to survive a motion to dismiss.