In Demesa v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK, 2022 U.S. Dist. LEXIS 98511, at *8-9 (D. Nev. June 1, 2022), Judge Dorsey rejected a TCPA Plaintiff’s attempted end-around Duguid, where the Plaintiff argued that a standard text message fell within section 47 U.S.C. § 227(b)(1)(B)’s prohibition against using “artificial or prerecorded voice” without consent.
DeMesa’s alternative theory of liability fares no better. She claims that the TCPA’s prohibition against using an “artificial or prerecorded voice” bars the use of an automated texting service like Ivy. Treasure Island contends that text messages don’t have voices; no court has held that they do; and although the Ninth Circuit has included texts in the definition of the term “calls,” it has continued to distinguish between “text calls” and “voice calls.” DeMesa See, e.g., Tehrani, 2021 WL 3886043, at *4. . . .[Plaikntiff] provides no authority for her contention that a text message has a “voice,” let alone an artificial or prerecorded one under the statute. She instead argues only that dictionary definitions of the term “voice” include all “instrument[s] . . . of expression.” But the Ninth Circuit’s differentiation between voice and text calls militates toward a narrower definition of “voice”- one that confirms that “voice” and “text” are mutually exclusive under the TCPA.37 Treasure Island’s texts to DeMesa thus cannot have had a voice as contemplated by the TCPA, so DeMesa’s complaint must be dismissed in its entirety. And because she cannot allege any facts that could overcome the deficiencies in her theories of liability, amendment would be futile. Accordingly, I dismiss this case with prejudice.