/>iSo quick but important TCPA update here on something everyone should already know but I know there’s one or two of you out there who were confused.
The TCPA has two major restrictions: i) thou shalt not use regulated communications technology without the appropriate level of consent; and ii) thou shalt not make telephone solicitations (term of art) to numbers on the DNCR.
Under the regulated technology provisions, however, we have another split: i) thou shalt not use an ATDS to make calls; and ii) thou shalt not use a prerecorded or artificial voice.
That last distinction is wide and obvious to me but is sometimes confusing to TCPA neophytes. To sum up the rule– a call is actionable under the TCPA either if it is made using an ATDS or if it is made using a prerecorded or artificial voice.
And that was precisely the holding of Davis v. Rockloans, 2024 WL 4345293 (9th Cir. Sept. 30, 2024). There the lower court had dismissed the case outright upon a finding an ATDS was not used. But the plaintiff had also alleged prerecorded calls were used. And it was error for the lower court to dismiss the entire case as a result:
The district court erred, however, in dismissing Davis’s entire case on that basis. Section 227(b)(1)(A) is constructed in the disjunctive, so that “there are two ways to violate this provision: using an ATDS or [using] an ‘artificial or prerecorded voice.’ ” Trim v. Reward Zone USA LLC, 76 F.4th 1157, 1160 (9th Cir. 2023) (emphasis added) (quoting 47 U.S.C. § 227(b)(1)(A)); see also Duguid, 592 U.S. at 408 n.8. Thus, a plaintiff may state a TCPA claim by alleging the use of an artificial or prerecorded voice, irrespective of whether an ATDS was used. See id. The district court’s order does not discuss this aspect of the statute, the authorities interpreting it, or the allegations in the complaint incorporating it.
