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Pre-Recorded Voice

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District Court (Cal.) Says Text Messages are Not “Pre-recorded Voice” under TCPA

by Scott J. Hyman |

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… Read More

District Court (Conn.) Says Text Message Software Passed Muster under Duguid; Rejects Argument that a Text Message is a “Pre-Recorded Voice”

by Scott J. Hyman |

In Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., No. 3:19-cv-592 (JAM), 2022 U.S. Dist. LEXIS 126468, at *6-8 (D. Conn. July 18, 2022), Judge Meyer disposed of the argument that Subway's text message software was an ATDS. And under Soliman's reading, the Act would probably cover much more than mass dialing. As she admits, sequential number generation is "an… Read More

District Court (Nev.) Rejects End-Around Duguid Attempt; Holds Text Message Is Not an “Artificial or Pre-Recorded Voice” under TCPA

by Scott J. Hyman |

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.… Read More

District Court (Cal.) Finds that a Text Message is Not a “Pre-Recorded Voice” under the TCPA

by Scott J. Hyman |

In Eggleston v. Reward Zone USA LLC, No. 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928, at *11-14 (C.D. Cal. Jan. 28, 2022), Judge Wilson dismissed a TCPA "pre-recorded voice" case premised on the theory that the standard text messages that she received did not constitute a "voice" under the TCPA. Plaintiff also alleges that Defendant's text messages violated § 227(b) because… Read More

District Court (Fla.) Disposes of TCPA Claims Using Aspect Dialer, But Says “Pre-Recorded” Message Claims Survive

by Scott J. Hyman |

In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls. Ocwen contends summary judgment on the Browns' TCPA claims is warranted because its Aspect dialer is not… Read More

District Court (Fla.) Discusses the Meaning of ACA Int’l and What (Now) Constitutes an ATDS; But, Says It Sort of Doesn’t Matter Because, in part, an Artificial Voice Was Alleged

by Scott J. Hyman |

In Gonzalez v. Ocwen Loan Servicing, LLC.,  2018 WL 4217065, at *5–6 (M.D.Fla., 2018), Judge Moody described the effect of ACA Int'l on what constitutes an ATDS. In sum, ACA Int’l vacated the FCC’s 2015 Order in two ways relevant here: it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as… Read More

District Court (Ind.) Denies MSJ to TCPA Defendant Who Proved ATDS Was Not Used Because Calls May Have Been Pre-Recorded

by Scott J. Hyman |

In Benedetti v. Charter Communications, Inc., 2018 WL 2970998, at *2 (S.D.Ind., 2018), Judge Miller denied summary judgment to a TCPA defendant who established that an ATDS was not used because the calls may have been pre-recorded calls. Charter is correct that Ms. Benedetti doesn’t have evidence to show that any of the calls was made by using an automatic… Read More