It's conference day! Headed down to San Diego right now, but before I leave wanted to cover this quick (potentially big) story.

So a while back I covered a new theory being advanced by Edelson’s shop that text messages are prerecorded calls for TCPA purposes. The issue here is that courts currently consider texts to be subject to the TCPA if–and only if–an automated telephone dialing system is used to send the text message. That was, of course, the setting of the Supreme Court’s Facebook decision last year.

But while the Supreme Court assumed that an ATDS must be used for texts to be actionable in addressing Facebook–and the holding implicitly recognizes the same–it did not actually address the issue of whether text messages might be prerecorded voice calls for purposes of the TCPA. And, critically, prerecorded voice calls do not have to be sent using an ATDS to be actionable.

In other words, if texts are treated as prerecorded voice calls then a Plaintiff no longer needs to prove an ATDS was used to send the message. The mere fact that the message was sent would be sufficient to trigger TCPA coverage–and text messages attempted without express consent would cost the sender $500.00 per call.

No court has yet adopted this theory–probably because a text is not a voice–which is why text messaging is currently the safest outreach channel in TCPAWorld (except in Florida.)

But the Plaintiff’s bar is really starting to push this “texts are voices” argument.

For instance in a new complaint against a company calling itself “Grassdoor”, for instance, Todd Friedman’s shop is arguing that a text and a voice are the same thing:

In Merriam Webster’s Dictionary, “voice” is defined as “an instrument or medium of expression.” It defines “artificial” as “humanly contrived…often on a natural model : MAN MADE” and “lacking in natural or spontaneous quality.” The messages sent to Plaintiff by Defendant using the SMS blasting platform employed a text message as an instrument or medium of expression to deliver an automatic message drafted in advance of being sent, i.e. that of an SMS message, to convey a telemarketing communication to Plaintiff….Accordingly, Defendant’s messages utilized an “artificial voice” as prohibited by 47 U.S.C. § 227(b)(1)(A).

See what they did there?

You can read the complaint (brought by serial litigator Terry Fabricant) here: Fabricant complaint²

As I always say, the Plaintiff’s bar is better than the Defense bar in this space overall and far more strategic. They aren’t going to take a run at a bad case on this issue. They’ll keep filing until they find the right combination of facts in the right court with the right opposing counsel.

So if you find yourself defending one of these texts=prerecorded call cases to briefing that likely means the plaintiff’s bar as selected you and your client as a good test case subject. Don’t let TCPAWorld down. Give me a buzz and I’ll help you frame your arguments–free of charge. We cannot afford to lose this one.

In the meantime, we’ll keep an eye on this.