In Risher v. Adecco Inc., No. 19-cv-05602-RS, 2022 U.S. Dist. LEXIS 209676 (N.D. Cal. Nov. 18, 2022), Judge Seaborg dismissed an evolving theory that text messages can be a pre-recorded voice under the TCPA.

In the absence of express consent, section 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and its implementing regulations at 47 CFR § 64.1200(a)(2), prohibit non-emergency calls to cell phones that are made “using any automatic telephone dialing system or an artificial or prerecorded voice.” As noted, Risher agrees that his claim that defendants used an “automatic telephone dialing system” cannot go forward. Risher also acknowledges that the text messages sent to him were not a “voice” in the sense of audible, spoken, words. Risher contends, however, that the messages had a “voice” in a metaphorical sense—indeed that the very intent of the Mya chatbot is to create the impression of an interactive human “voice,” responding conversationally. Risher further argues that the texts, although silent, represent the very type of automated, mass messaging that TCPA was intended to prevent. Risher’s position is not frivolous. As one court observed, “the policy of protecting telephone privacy might be advanced by a prohibition on unwanted text messages . . . .” Mina v. Red Robin International, Inc., Case No. 20-cv-00612-RM-KLM (August 18, 2022, D. Col.). As the Mina court went on to hold, however, “that is not what the TCPA currently does.” Rather, “in common parlance, text messages simply are not considered ‘voices,'” and the statute should be understood by the ordinary meaning of its words. Id.; see also, Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., Case No. 3:19-cv-592 (July 18, 2022, D. Conn.) (“To be sure . . . ‘voice’ can also be used metaphorically . . . [b]ut this use is less common and is typically used in poetic or literary settings . . . . In normal English, an advertiser’s text message is not its ‘voice.'”) Soliman further observed that interpreting “voice” metaphorically “is even less plausible given that the Act bans ‘prerecorded voices.’ To ‘record’ is ‘[t]o convert (sound or visual scenes, esp. television pictures) into permanent form.’ Record (def. 9c), Oxford English Dictionary. This definition matches perfectly with the sound sense of ‘voice,’ but not with the metaphorical one.” Risher’s third claim for relief, therefore, fails. Because this dismissal turns on the legal conclusion that the text messages do not fall within the statutory language,  it is not a pleading defect that can be cured by amending to state additional or other facts. Risher has not suggested otherwise. Accordingly, no leave to amend will be granted.