[00:00:00] Speaker 01:
Proceed.

[00:00:12] Speaker 02:
Good morning, Your Honors.

[00:00:13] Speaker 02:
May it please the Court, John Phillips for Appellant, Jacob Howard.

[00:00:21] Speaker 02:
Plaintiff needs to allege three things to state a claim under 227B1A3.

[00:00:27] Speaker 02:
First, a call to a cell phone.

[00:00:29] Speaker 02:
In this case, it was a text call.

[00:00:31] Speaker 02:
Two, using an artificial or pre-recorded voice.

[00:00:35] Speaker 02:
In this case, it was a video with an audible pre-recorded voice.

[00:00:38] Speaker 02:
And three, without prior express consent, which Howard never provided.

[00:00:41] Speaker 00:
I just want to make sure I understand exactly what it is you're claiming about the facts.

[00:00:47] Speaker 00:
If you open your text app on this and you look at this text,

[00:00:57] Speaker 00:
Does it play any sound, or do you have to touch the link in order to get the sound?

[00:01:02] Speaker 02:
Well, to be clear, it's not a link.

[00:01:05] Speaker 02:
This is actually a video file that was downloaded to the plaintiff's phone.

[00:01:10] Speaker 01:
How is the video file accessed?

[00:01:12] Speaker 01:
Does it pop up automatically, or do you have to navigate to it?

[00:01:18] Speaker 02:
So you will typically receive a text notification, just as when you receive any other text call.

[00:01:26] Speaker 02:
And then when you click on that notification, it's going to open up the text message.

[00:01:31] Speaker 02:
And with the video there, yes, you do have to push play to commence.

[00:01:36] Speaker 01:
You put the video, the image of the video comes up.

[00:01:40] Speaker 01:
Correct.

[00:01:41] Speaker 01:
And then there's an arrow there.

[00:01:42] Speaker 01:
Then you have to push that arrow for the video to play.

[00:01:46] Speaker 02:
It may vary depending on the particular phone and the operating system used on the phone.

[00:01:52] Speaker 02:
But yes, there is an action required

[00:01:56] Speaker 02:
by the recipient to push play.

[00:01:58] Speaker 02:
On some phones, it may show up as an arrow.

[00:02:01] Speaker 02:
On other phones, there's no arrow that shows up.

[00:02:05] Speaker 02:
You simply touch the video and it starts playing.

[00:02:08] Speaker 02:
But yes, there is an interaction required.

[00:02:10] Speaker 01:
The video is displayed.

[00:02:11] Speaker 01:
With the text message, the video is displayed.

[00:02:16] Speaker 02:
That's correct.

[00:02:18] Speaker 00:
And then how is it stored?

[00:02:24] Speaker 00:
Is it like a temporary cache or is it permanently stored?

[00:02:27] Speaker 00:
Where is it?

[00:02:28] Speaker 02:
It's permanently downloaded to the telephone of the recipient.

[00:02:32] Speaker 02:
So it's taking up memory on their phone.

[00:02:35] Speaker 02:
It's taking up data usage on their phone.

[00:02:39] Speaker 02:
And it's also using their bandwidth before they ever do anything to access the audible component of it.

[00:02:47] Speaker 02:
But this question of whether there's any interaction required,

[00:02:53] Speaker 02:
Under Satterfield, there doesn't have to be.

[00:02:56] Speaker 02:
Under ringless voicemail cases, there doesn't have to be any interaction.

[00:03:01] Speaker 02:
The violation of the TCPA occurs upon sending.

[00:03:06] Speaker 02:
So to the extent someone consents to it after the fact, that's not good enough.

[00:03:12] Speaker 02:
The violation has already occurred and the statute specifically requires not just consent

[00:03:18] Speaker 02:
but prior express consent.

[00:03:20] Speaker 00:
Does that mean that if someone sends to a friend a text with a video link, they violated the statute?

[00:03:28] Speaker 02:
Again, not a video link.

[00:03:29] Speaker 02:
This was a video that was sent.

[00:03:31] Speaker 02:
So I want to be clear about that.

[00:03:34] Speaker 00:
But no.

[00:03:34] Speaker 00:
They send a text that has a video that then downloads, but you have to touch it on the text.

[00:03:41] Speaker 02:
Is that person... Absolutely not, Your Honor.

[00:03:44] Speaker 02:
Because there's consent.

[00:03:46] Speaker 02:
The FCC

[00:03:48] Speaker 02:
has said, and this court has deferred to that interpretation previously under Chevron and before Loper-Brite, so we still have to honor those prior holdings.

[00:04:01] Speaker 02:
And I believe it was Lloyd, it'll come to me in a minute, but there was a case where the court specifically, I believe it was Van Patten, dealt with consent specifically.

[00:04:12] Speaker 02:
So when you give someone your phone number,

[00:04:15] Speaker 01:
So the theory is, if you've provided someone your phone number, you've impliedly consented for them to provide those types of messages to you?

[00:04:24] Speaker 02:
More than that.

[00:04:25] Speaker 02:
I would say you've expressly consented.

[00:04:27] Speaker 01:
By giving the phone number, I don't know if that's expressed consent.

[00:04:30] Speaker 02:
That's how this court is interpreted in Van Patten.

[00:04:37] Speaker 02:
And previously, when Chevron deference was a thing, that was how the FCC had construed it, was that if

[00:04:45] Speaker 02:
if you had given your phone number, there was consent.

[00:04:49] Speaker 02:
So, you know, I mean, Howard stated a prima facie case.

[00:04:54] Speaker 02:
The three elements were satisfied, and this court recognized that those facts violate the TCPA in footnote four, a trim, where this court stated that text call could come via MMS, include audio sound with an artificial pre-recorded voice.

[00:05:11] Speaker 02:
And that's exactly what Howard alleged in the complaint.

[00:05:13] Speaker 03:
In that case, however, did the voice activate without any action from the recipient?

[00:05:19] Speaker 02:
So in that case, there was no voice.

[00:05:22] Speaker 02:
In TRIM, we were dealing with a text message that was purely text.

[00:05:27] Speaker 02:
There was no video included.

[00:05:28] Speaker 02:
And this is one of the things that

[00:05:32] Speaker 02:
Frankly, I think the defendants have tried to play hide the ball with, because they know what they sent.

[00:05:40] Speaker 02:
And it wasn't a link preview.

[00:05:43] Speaker 02:
They sent a video.

[00:05:45] Speaker 02:
And that's what we allege.

[00:05:47] Speaker 02:
And this court has to draw those inferences in our favor.

[00:05:50] Speaker 02:
This court can't indulge these inferences in favor of the moving party.

[00:05:55] Speaker 02:
Howard alleged in paragraph 25 that a video file with prerecorded voice

[00:06:03] Speaker 02:
An audible pre-recorded voice was automatically downloaded to his phone.

[00:06:07] Speaker 02:
And at that point, the violation of the TCPA is complete.

[00:06:10] Speaker 01:
Counsel, can we talk about the residential portion?

[00:06:13] Speaker 01:
Absolutely, Your Honor.

[00:06:16] Speaker 01:
Would you agree that if the call was for, if the message was for a non-commercial purpose, then that section wouldn't be violated?

[00:06:28] Speaker 02:
If it was purely for a non-commercial purpose, I think that that would not have violated B1B.

[00:06:35] Speaker 02:
The residential portion.

[00:06:40] Speaker 02:
Correct.

[00:06:41] Speaker 02:
To be clear, and I want to be clear about this because defendants have argued that that's a complete get out of jail free card for them.

[00:06:48] Speaker 01:
Well, let's just explore it for a moment.

[00:06:51] Speaker 01:
You said if it's purely commercial,

[00:06:55] Speaker 02:
Purely non-commercial.

[00:06:56] Speaker 01:
Purely non-commercial.

[00:06:57] Speaker 01:
What do you mean by that?

[00:06:58] Speaker 02:
Well, this court previously, and I believe it may have even been a case you were involved in, Your Honor, in Shezbro, the Best Buy stores, determined that there can be dual purpose calls, that a call can be for multiple purposes.

[00:07:13] Speaker 02:
So even though we alleged it was for a political purpose, it could also be for fundraising, which would be a commercial purpose.

[00:07:21] Speaker 02:
And if that's the case, then if it's a dual purpose call, we should be, at a minimum, we should be allowed to amend our complaint to allege it's a dual purpose call.

[00:07:31] Speaker 01:
What are you asserting in this?

[00:07:32] Speaker 01:
Are you asserting that it was a dual purpose?

[00:07:35] Speaker 02:
We didn't assert one way or the other.

[00:07:37] Speaker 02:
We just said that it was to promote their political agenda.

[00:07:41] Speaker 02:
But to the... Promotion.

[00:07:42] Speaker 01:
Let me ask you this.

[00:07:43] Speaker 01:
Promotion of a political agenda, would that be commercial or non-commercial?

[00:07:48] Speaker 02:
If they're attempting to raise money, it's commercial, Your Honor, and drawing the inferences in our favor?

[00:07:55] Speaker 02:
Absolutely.

[00:07:57] Speaker 02:
But to be clear, this exemption that they're claiming refuge under for the residential calls only applies to residential calls.

[00:08:08] Speaker 02:
It doesn't apply to a call to a cell phone, even if it happens to be both a cell phone and a residential call.

[00:08:17] Speaker 02:
and that I can get into that if the court would like but it has to do with the authorizing authority under B2B which applies to residential and B2C which applies to cellular phones.

[00:08:32] Speaker 02:
FCC's never promulgated any exceptions to B1A3 under the B2C authority so there can't be any crossover there.

[00:08:42] Speaker 02:
One other thing that is

[00:08:45] Speaker 02:
critically important that we didn't address in our briefs is that in 2019 Congress amended the TCPA.

[00:08:57] Speaker 02:
And in that amendment to the TCPA, they added section, this was a bipartisan amendment almost unanimously passed,

[00:09:09] Speaker 02:
Um, but it ratified Satterfield's holding that text calls are prohibited by 227B.

[00:09:16] Speaker 02:
And let me just walk you through that briefly, but basically the 2019 amendment added section 227I1A, which directs the FCC to establish a process to streamline the information, sharing of information about, and I quote, a call made or a text message sent in violation of subsection B.

[00:09:39] Speaker 02:
So Congress recognized that text messages can violate subsection B, and they did that without any limitation, any of this distinction that defendants are claiming about voice calls and text calls.

[00:09:54] Speaker 03:
They just said text messages can violate subsection B. Does a person actually hear an artificial or pre-recorded voice without taking any responsive action to the text?

[00:10:06] Speaker 02:
Again, there does have to be some step taken, but that is not part of it.

[00:10:13] Speaker 02:
There's no requirement in the statute that or in the case law that someone, you know, as the district court said, someone has to make a conscious choice because the violation has already occurred.

[00:10:29] Speaker 02:
You can't have after the fact consent.

[00:10:31] Speaker 02:
The statute is clear about that.

[00:10:33] Speaker 02:
It must be expressed prior consent.

[00:10:36] Speaker 00:
Do we attach any significance to the fact that A refers to any call and B refers to any telephone call?

[00:10:46] Speaker 02:
I'm sorry, where are you in the statute?

[00:10:48] Speaker 00:
I'm at 227B1A and B1B.

[00:10:53] Speaker 00:
The operative phrase in B1A is to make any call, and in B it's to make any telephone call.

[00:10:59] Speaker 00:
There's an extra word there.

[00:11:00] Speaker 00:
Does that make any difference?

[00:11:02] Speaker 02:
I don't have the authority right here with me, but I did come across this in doing some final preparation, and the FCC has recognized this difference and yet has also said that they don't attach any significance to it.

[00:11:22] Speaker 02:
And I realize that that's no longer, after Loper-Brite, no longer

[00:11:27] Speaker 02:
bind it, you know, it's only persuasive authority to the extent that we look at the agency's expertise.

[00:11:35] Speaker 02:
But the FCC historically has not seen any distinction between those two and our position would be that this court shouldn't either.

[00:11:51] Speaker 00:
It's quite striking.

[00:11:52] Speaker 00:
I mean, you know, these

[00:11:55] Speaker 00:
Um, two provisions are in the same subsection.

[00:11:58] Speaker 00:
You'd read them in paramateria and there's an obvious textual difference in a telephone call sounds a lot more like something involving voice.

[00:12:09] Speaker 02:
Well, but this does involve a voice, your honor.

[00:12:14] Speaker 02:
And, and I do want to expand a little bit on the, um, on

[00:12:21] Speaker 02:
because what they did was Congress, in I-2, defined a text message as it's set forth in E-8.

[00:12:32] Speaker 02:
And E-8C1 specifically says that a text message means a message consisting of text, images, and most importantly, they mentioned sounds there, which means that it can have an audible pre-recorded voice.

[00:12:47] Speaker 02:
And these technologies are

[00:12:49] Speaker 02:
have very much merged since the development, since the enactment of the TCPA.

[00:12:54] Speaker 00:
Can I take you back to this issue about prior consent?

[00:13:01] Speaker 00:
Yes.

[00:13:01] Speaker 00:
Because the exception to B1A is if it's made with the prior express consent of the called party.

[00:13:10] Speaker 00:
So how do I have the prior express consent of the called party

[00:13:16] Speaker 00:
if I send an acquaintance of mine a text that has a video in it.

[00:13:23] Speaker 02:
Because there is a presumption, and this is basically what Van Patten said, was that when you give someone your phone number, you are giving them consent to contact you.

[00:13:34] Speaker 00:
That's prior express consent.

[00:13:36] Speaker 00:
That is the way it has been interpreted.

[00:13:38] Speaker 00:
Council, don't talk over me, please.

[00:13:39] Speaker 00:
I'm sorry, Your Honor.

[00:13:40] Speaker 00:
You've done it several times.

[00:13:41] Speaker 00:
I'm sorry.

[00:13:42] Speaker 00:
You know, it reads the words out of the statute.

[00:13:45] Speaker 00:
I mean, prior express consent is equal to just giving a phone number is prior express consent to sending me things that violate this provision?

[00:13:56] Speaker 00:
That sounds hard to see.

[00:13:59] Speaker 02:
That is what Van Patten held.

[00:14:03] Speaker 02:
Van Patten, which we cited in our opening brief and in our reply, Van Patten held that that is prior express consent.

[00:14:13] Speaker 02:
when you give someone your phone number, and of course under Hart v. Massonary, this court is bound by that panel's precedent.

[00:14:21] Speaker 02:
So I don't think we can get around that.

[00:14:25] Speaker 02:
I see that I'm down to under a minute.

[00:14:28] Speaker 02:
I would just like to say as far as new technology,

[00:14:33] Speaker 02:
Congress shouldn't have to go back to court every time new technology develops to amend the TCPA.

[00:14:41] Speaker 02:
The FCC has recognized that, the Congressional History recognizes that, that it's supposed to adopt a new technology.

[00:14:48] Speaker 02:
I've got under a minute left, so I'd like to save the remainder of my time for rebuttal.

[00:14:51] Speaker 01:
Thank you, Counsel.

[00:14:52] Speaker 01:
We'll give you a minute for rebuttal.

[00:14:54] Speaker 02:
Thank you, Your Honor.

[00:15:17] Speaker 04:
Good morning, Your Honor.

[00:15:18] Speaker 04:
May it please the court, Dallin Holt on behalf of the Republican National Committee, the appellee in this case.

[00:15:27] Speaker 04:
Starting up where my colleague just left off, I'm going to quote from the DC Circuit from a 2018 case, ACA International v. FCC, where it says, it cannot be the case that every unintended communication from a smartphone

[00:15:44] Speaker 04:
infringes upon federal law and that nearly every American is a TCPA violator in waiting, if not a violator in fact.

[00:15:53] Speaker 00:
What's your response?

[00:15:54] Speaker 00:
His argument is that we've already read, um, the prior express consent clause broadly enough that that, you know, um, you know, that parade of horribles is not going to happen.

[00:16:11] Speaker 04:
I strongly disagree with that, Your Honor, as does the U.S.

[00:16:13] Speaker 04:
Supreme Court.

[00:16:15] Speaker 04:
In the recent case of the Facebook case, it was discussing a Ninth Circuit opinion.

[00:16:21] Speaker 04:
While we're dealing with an ATDS in that case, an auto-dialer, the equipment used to send a message, the Court made it very clear that words have meaning and that con... Yes, Your Honor.

[00:16:33] Speaker 01:
I was going to say, but did it overrule the determination about the express consent?

[00:16:41] Speaker 01:
Facebook address that at all?

[00:16:44] Speaker 04:
No, Your Honor.

[00:16:45] Speaker 04:
It was regarding a narrow reading of the rules.

[00:16:50] Speaker 04:
I can think of a thousand hypothetical scenarios where someone would not have expressed consent even if they have.

[00:16:56] Speaker 01:
We're talking about what our precedent is because we're bound to follow our precedent.

[00:17:00] Speaker 01:
So if our precedent says it's expressed consent and it's not overruled by the Supreme Court, then we're bound by that.

[00:17:09] Speaker 01:
Hypothetical is notwithstanding.

[00:17:11] Speaker 04:
I disagree with my colleague's interpretation of what the Ninth Circuit case law is.

[00:17:18] Speaker 00:
Can you explain why?

[00:17:19] Speaker 04:
Express consent.

[00:17:21] Speaker 04:
Being someone my phone number, I am not expressly consenting to be contacted with an artificial or pre-reported voice.

[00:17:26] Speaker 01:
But if our case authority says differently, how can we deviate from that?

[00:17:32] Speaker 01:
What case are you relying upon?

[00:17:34] Speaker 04:
I'm relying upon the text of the statute, Your Honor.

[00:17:40] Speaker 01:
But if we interpret the text of the statute that way, then you're bound by that and we're bound by that, correct?

[00:17:52] Speaker 04:
Of course.

[00:17:53] Speaker 04:
That's what the case law says.

[00:17:55] Speaker 04:
But the case law does not say, even me giving a phone number to a friend, a colleague, or a co-worker is implied or expressed consent to be contacted with an artificial or pre-recorded voice.

[00:18:09] Speaker 04:
nowhere in Ninth Circuit case law, Your Honor.

[00:18:14] Speaker 04:
And what is important is to look at the actual text of 227 and the associated regulatory scheme, analyze the plain language and plain meaning of the words, and view them in the context and ask ourselves, does plaintiff's interpretation make sense based upon the plain meaning of the words?

[00:18:38] Speaker 04:
Every case, every court, including the Ninth Circuit, that has analyzed whether or not a text message can constitute an artificial or pre-recorded voice has found that the plain meaning of the word of words in 227 and the supporting regulatory scheme does not include text message within the meaning of artificial or pre-recorded voice.

[00:19:03] Speaker 04:
There is not a single case that my colleague can cite to here that finds

[00:19:09] Speaker 04:
that a text message can be an artificial pre-recorded voice.

[00:19:11] Speaker 00:
You can see that a voicemail is covered by the statute.

[00:19:16] Speaker 04:
I do, Your Honor.

[00:19:16] Speaker 04:
That is initiated with a voice call.

[00:19:19] Speaker 00:
But what is the difference between an unanswered call that then implants a voicemail message in the voicemail section of the cell phone and what he's alleging here, which is a text message that implants a video pre-recorded

[00:19:38] Speaker 00:
in a section of the cell phone.

[00:19:40] Speaker 00:
What's the difference between those two?

[00:19:42] Speaker 04:
The difference is what your honor just said.

[00:19:44] Speaker 04:
We have a video.

[00:19:45] Speaker 00:
They're in different locations of the phone, but what's the difference?

[00:19:51] Speaker 00:
You're transmitting a pre-recorded stored message and planning it on the phone.

[00:19:56] Speaker 04:
In one instance, you're referring to a video.

[00:19:59] Speaker 04:
I'm not sending a voice.

[00:20:00] Speaker 00:
Suppose it's an audio.

[00:20:02] Speaker 00:
It's an audio file attached to the text message.

[00:20:07] Speaker 00:
you know, it downloads it onto the phone.

[00:20:09] Speaker 00:
You have to go retrieve it the way you have to retrieve the voicemail.

[00:20:13] Speaker 00:
But what's the difference between those two?

[00:20:16] Speaker 00:
And how is that tied up to the statutory language?

[00:20:20] Speaker 04:
Again, Your Honor, if I may answer your question by going through some of the statutory text, and I think it'll help us understand that a little better.

[00:20:28] Speaker 03:
Well, one answer might be Congress just hasn't acted yet.

[00:20:34] Speaker 03:
It has acted on the voice component.

[00:20:37] Speaker 03:
but has not acted on the text component.

[00:20:39] Speaker 03:
And that's its choice.

[00:20:41] Speaker 03:
Absolutely, Your Honor.

[00:20:42] Speaker 04:
As Mr. Phelps said, in 2019, the TCPA was amended, and many, many times before that, between 1991 when it was enacted and today.

[00:20:55] Speaker 04:
Every few years, Congress has amended the TCPA.

[00:20:59] Speaker 04:
And in many of those amendments, they have added explicit words of text messages.

[00:21:04] Speaker 04:
to different sections to make it abundantly clear that certain provisions of the TCPA apply to voice calls and to text messages.

[00:21:14] Speaker 04:
If you invite the court to simply open up to 227 and search find and just type text message and you will find dozens of references that explicitly differentiate between a voice call and a text call.

[00:21:33] Speaker 04:
Yes, there is a – I lack the better word – a legal fiction that we're not disputing here today that a text is a call for purposes of the TCPA, despite the fact that there's no express language in the TCPA that says that.

[00:21:49] Speaker 04:
However, to take it a step further and to say that a text is an artificial or pre-recorded voice call, we're already out on the limb, in my opinion, with arguing that a text is a call for purposes

[00:22:02] Speaker 04:
for some purposes of the TCPA, to take it a step further, completely departs from the plain ordering meaning of the text.

[00:22:09] Speaker 01:
Council, in your view, would a friend leaving a text message on the phone be included in this statute?

[00:22:20] Speaker 04:
An artificial pre-recorded voice claim of the statute, Your Honor?

[00:22:23] Speaker 01:
Right.

[00:22:24] Speaker 01:
No, the hypothetical was, if a friend left a text message with a video,

[00:22:31] Speaker 01:
Would that be covered under this statute?

[00:22:36] Speaker 04:
I don't believe so.

[00:22:37] Speaker 04:
If you apply a council's understanding of it, yes, that would be the outcome.

[00:22:42] Speaker 04:
I do not believe a text message with a video.

[00:22:44] Speaker 01:
But normally if someone calls you, do they use an artificial voice?

[00:22:51] Speaker 01:
A pre-recorded artificial or pre-recorded voice?

[00:22:54] Speaker 01:
If the text, if the friend did not use an artificial or pre-recorded voice,

[00:23:00] Speaker 01:
Would that be covered under this statute?

[00:23:03] Speaker 04:
Absolutely not, Your Honor.

[00:23:04] Speaker 04:
It's important, I think, to understand in 1991, when this was enacted, text messaging did not exist.

[00:23:13] Speaker 04:
It was not part of our vocabulary.

[00:23:15] Speaker 01:
But we've since ruled that text messages are covered.

[00:23:18] Speaker 04:
Yes, Your Honor, and we're not disputing that here today.

[00:23:21] Speaker 04:
It is simply an atextual common law creation that has deferred to the FCC's guidance over the years on that matter.

[00:23:30] Speaker 04:
If you look at the Facebook opinion, Justice Sotomayor goes through pages of the reasons why the TCPA was enacted.

[00:23:40] Speaker 04:
And one of the primary reasons, we have this artificial or pre-recorded voice prohibition.

[00:23:47] Speaker 04:
The technology at the time would allow someone to get an auto-dialer, and I could say, okay, on that city block, I'm going to program this to call every single number sequentially,

[00:23:59] Speaker 04:
And I'm going to have it leave a message.

[00:24:02] Speaker 04:
If someone answers, it'll play a message.

[00:24:05] Speaker 04:
If it goes to a voicemail, it will play a message.

[00:24:07] Speaker 04:
I don't have to have anyone there manning this.

[00:24:09] Speaker 04:
And what was happening is you would have hospitals, police stations, city government buildings, entire phone lines of a city block were getting tied up.

[00:24:19] Speaker 04:
It was a public safety concern.

[00:24:21] Speaker 01:
Right.

[00:24:21] Speaker 01:
Council, my concern here is to decide whether or not the

[00:24:29] Speaker 01:
communication that was made to the plaintiff fit within the definition of the statute.

[00:24:35] Speaker 01:
And so you're going through the purpose of the statute to me isn't helpful to me in terms of under the wording of the statute, did this communication fit within the provisions of the statute?

[00:24:49] Speaker 01:
Tell me why it did not fit within the language of the statute.

[00:24:56] Speaker 04:
Yes, your honor.

[00:24:57] Speaker 01:
And I'm not talking about the residential part.

[00:24:59] Speaker 01:
I'm talking about the wireless part.

[00:25:02] Speaker 04:
Yes, Your Honor.

[00:25:05] Speaker 04:
In opening up the plain language of 227.

[00:25:07] Speaker 04:
B1.

[00:25:07] Speaker 04:
227B1.

[00:25:17] Speaker 04:
Yes, the wireless provision.

[00:25:22] Speaker 04:
Artificially recorded voice call is

[00:25:26] Speaker 04:
somewhat defined in the TCPA.

[00:25:28] Speaker 01:
Do you agree or disagree that the call that was made to the plaintiff, if we accept the fact that the image was part of it, used an artificial or pre-recorded voice?

[00:25:44] Speaker 04:
No, I do not.

[00:25:45] Speaker 04:
Not under the meaning of the statute, Your Honor.

[00:25:46] Speaker 01:
Well, why?

[00:25:48] Speaker 01:
Why not?

[00:25:48] Speaker 04:
Whether or not something constitutes an artificial or pre-recorded voice, I would

[00:25:53] Speaker 04:
direct the court to D3, which discusses technical and procedural standards.

[00:25:58] Speaker 01:
Was it a live voice?

[00:26:00] Speaker 01:
Was it a live voice?

[00:26:05] Speaker 04:
No, Your Honor.

[00:26:06] Speaker 01:
So if it wasn't a live voice, why wasn't it pre-recorded?

[00:26:11] Speaker 04:
It was pre-recorded in the sense that it was when they filmed the movie, when they filmed the clip, it captured audio and a visual component and mirrored them together.

[00:26:23] Speaker 04:
However,

[00:26:24] Speaker 04:
The statute is clear on what they view as an artificial or pre-recorded voice, and it has to be sent with an artificial or pre-recorded voice system.

[00:26:32] Speaker 04:
It is the equipment that is outlined here.

[00:26:36] Speaker 01:
And it says the commission, and I'm on... Are you still in the wording of the statute?

[00:26:41] Speaker 04:
Yes.

[00:26:41] Speaker 04:
D3 of view.

[00:26:42] Speaker 04:
Continue towards the middle to the end of the statute under a section entitled technical and procedural standards.

[00:26:50] Speaker 04:
It says this, the commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or pre-recorded voice message.

[00:26:59] Speaker 01:
That's just a transmission system.

[00:27:01] Speaker 01:
That's not defining what is an artificial or pre-recorded voice.

[00:27:08] Speaker 04:
Well, it's defining the equipment that is used to send it.

[00:27:10] Speaker 01:
Exactly.

[00:27:11] Speaker 01:
Exactly.

[00:27:12] Speaker 04:
And the equipment that plaintiff alleges was sent, the text in question, was another cell phone or was another computer equipment.

[00:27:19] Speaker 04:
an artificial or pre-recorded voice system.

[00:27:23] Speaker 04:
And as you look through this, I'm looking at subsection B of that, it says any such system, meaning an artificial or pre-recorded voice system, will automatically release the called party's line within five seconds of the time the notification is transmitted and that the called party has hung up to allow the called party's line to be used to make or receive other calls.

[00:27:46] Speaker 01:
Counsel, can all of these

[00:27:50] Speaker 01:
gradations be made on a motion to dismiss?

[00:27:55] Speaker 01:
All these issues, can they be resolved on a motion to dismiss?

[00:27:59] Speaker 01:
What equipment was used and how it was sent?

[00:28:02] Speaker 01:
Is that appropriate for a motion to dismiss?

[00:28:05] Speaker 04:
We're not discussing equipment here.

[00:28:07] Speaker 01:
As far as... I thought you said the systems that were used.

[00:28:10] Speaker 04:
Yes, Your Honor.

[00:28:11] Speaker 01:
It take whether or not it's a recorded, pre-recorded or artificial voice.

[00:28:17] Speaker 01:
But on a motion to dismiss, how would we get to that?

[00:28:23] Speaker 04:
The district court's dismissal relied, it was kind of a belt and suspenders approach.

[00:28:27] Speaker 04:
The first approach was the unambiguous plain meaning of the text, artificially pre-recorded voice does not include a text message with a video.

[00:28:37] Speaker 04:
A hard stop.

[00:28:39] Speaker 04:
And to do that, you have to look at the text as a whole, not just the one section of it.

[00:28:45] Speaker 04:
What are the requirements?

[00:28:47] Speaker 04:
the TCPA and the FCC have placed on me if I'm going to make or place an artificial pre-recorded voice call.

[00:28:54] Speaker 04:
Here, it clearly implies that a party has to answer and hang up, free up the line so that other calls can be made.

[00:29:04] Speaker 04:
This clearly implies a telephone call is taking place.

[00:29:06] Speaker 04:
None of this language makes sense in the context that I'm dealing with a text message that doesn't occupy the call party's line at all.

[00:29:15] Speaker 04:
And I see my time is quickly

[00:29:17] Speaker 04:
leaving here your honor I just I want to focus lastly on the statutory scheme the regulatory scheme and 47 CFR 1200 here and this is where the exemptions have been codified it is where there's additional regulations surrounding requirements surrounding the use of artificial pre-recorded voice I'm looking at subsection F

[00:29:47] Speaker 04:
Subsection 9F, where you're hearing voice calls and text messages, voice calls and text messages over and over and over again throughout this section.

[00:30:00] Speaker 04:
It talks about artificial pre-recorded voice calls.

[00:30:04] Speaker 04:
You must terminate the call as soon as the person requests to be removed from the list.

[00:30:09] Speaker 04:
And it requires that you either, within two seconds of identifying yourself on the call,

[00:30:16] Speaker 04:
you have to provide a button dial mechanism for someone to opt out.

[00:30:19] Speaker 04:
You can't do that on a text message, Your Honor, and I see my time is up.

[00:30:22] Speaker 01:
Right, but we've already said that a text message is covered.

[00:30:25] Speaker 01:
But I just wanted to ask you, in B1A, it prohibits making any call other than those made with express consent

[00:30:36] Speaker 01:
or emergency purpose using any automatic telephone dialing system or an artificial or pre-recorded voice.

[00:30:45] Speaker 01:
So it's either or.

[00:30:46] Speaker 01:
It doesn't have to be an automated system if it's an artificial or pre-recorded voice.

[00:30:51] Speaker 01:
Do you agree?

[00:30:53] Speaker 04:
I do, Your Honor.

[00:30:54] Speaker 04:
Okay.

[00:30:54] Speaker 04:
With the distinction there is a voice call and a text call.

[00:30:57] Speaker 01:
Got it.

[00:30:58] Speaker 04:
And you need to recognize which one applies to which.

[00:31:00] Speaker 01:
I understand your argument.

[00:31:01] Speaker 01:
Any questions?

[00:31:04] Speaker 01:
All right.

[00:31:07] Speaker 01:
I looked at the case that you recited.

[00:31:10] Speaker 01:
Were you reciting the Lohayam case?

[00:31:13] Speaker 01:
Is that the case you were citing?

[00:31:15] Speaker 02:
Uh, it was actually, I believe for the consent, I believe it was Van Patten, your honor.

[00:31:18] Speaker 01:
Well, I thought you said Lohayam.

[00:31:20] Speaker 02:
I did say Lohayam.

[00:31:21] Speaker 02:
I misspoke.

[00:31:22] Speaker 02:
Lohayam dealt with a report.

[00:31:22] Speaker 01:
I read that one and it doesn't say what you said.

[00:31:24] Speaker 01:
Correct.

[00:31:25] Speaker 02:
Lohayam I believe deals with a,

[00:31:28] Speaker 02:
what appears to be a ringless voicemail, although it wasn't specifically identified as such.

[00:31:32] Speaker 01:
Why are you talking?

[00:31:32] Speaker 02:
I'm going to look up a couple, a couple of things I want to go through really quickly with the court council.

[00:31:37] Speaker 02:
Oh, I'm sorry, your honor.

[00:31:38] Speaker 00:
I asked you a question about Van Patten, which is, did Van Patten address express consent in the context of consenting to receive pre-recorded messages?

[00:31:52] Speaker 00:
I mean, cause if I give my cell phone number to someone, does that mean I consent to robocalls?

[00:31:58] Speaker 02:
Effectively, that's what the case law says.

[00:32:02] Speaker 02:
You know, my recollection of the facts in Van Patten were that he was receiving text messages through an autodialer.

[00:32:11] Speaker 02:
So, no, it wasn't a pre-recorded voice text.

[00:32:13] Speaker 02:
This is actually a matter of first impression in the nation.

[00:32:17] Speaker 02:
There have been cases brought, and this is why we can't cite to anything other than Trim that recognizes the possibility of a MMS text message

[00:32:28] Speaker 02:
that contains an artificial or pre-recorded voice.

[00:32:30] Speaker 00:
But you see the dilemma that I'm getting at, which is unless we read express prior consent to robocalls to mean anyone who gives out their cell phone has consented to robocalls, unless we put that limitation in, your reading of the statute just has sweeping concerns about everyone who's sending to anyone any kind of a link

[00:32:58] Speaker 00:
that would download a video, and that's a concern.

[00:33:03] Speaker 00:
So it's kind of a skill in Charybdis.

[00:33:06] Speaker 00:
Either the statute is just wildly overbroad, or in order to save it from overbreath, we read the consent in a way that really

[00:33:15] Speaker 00:
undercuts the statutory purpose of avoiding robocalls.

[00:33:18] Speaker 02:
So a few things I would say to that, Your Honor.

[00:33:21] Speaker 02:
One is if it's overbroad, that's not for this court to fix.

[00:33:24] Speaker 02:
That's for Congress to fix.

[00:33:25] Speaker 02:
That's Sedima.

[00:33:27] Speaker 02:
That's Rucho v. Common Cause.

[00:33:28] Speaker 00:
But it may be a suggestion your reading is wrong if it leads to such a reading that seems counter to Congress's purposes.

[00:33:37] Speaker 02:
based on the case law as it's developed, and I guess since we don't have a pre-recorded voice video that could be sent to you, if you gave someone your telephone number, if you gave a business your telephone number, they absolutely can, you've now given them consent to contact you with a pre-record, with a ringless voicemail, with a pre-recorded voice call.

[00:34:01] Speaker 01:
Council?

[00:34:02] Speaker 02:
I'm sorry, Your Honor.

[00:34:03] Speaker 01:
And Van Patten, that, um,

[00:34:06] Speaker 01:
That language was based on an FCC ruling.

[00:34:11] Speaker 01:
So now that Chevron deference no longer applies, can we decide that differently?

[00:34:19] Speaker 02:
Not according to Loper-Bright.

[00:34:20] Speaker 02:
Loper-Bright says we have to respect everything that was decided.

[00:34:23] Speaker 01:
It says star decisis.

[00:34:25] Speaker 02:
It says we have to respect whatever was decided under, with Chevron deference.

[00:34:29] Speaker 00:
I know, but it says we apply stats to restore decisis and I look at Van Patten and it doesn't address robo calls.

[00:34:35] Speaker 02:
I'm sorry?

[00:34:35] Speaker 00:
It doesn't address a robo call with a pre-recorded voice.

[00:34:39] Speaker 00:
It addresses just the autodialer, and it's to his own gym that he joined.

[00:34:44] Speaker 02:
But what's the distinction in the statute between a call made with an autodialer and a call made with a pre-recorded voice?

[00:34:53] Speaker 02:
They can, in fact, as some cases have shown, include both.

[00:34:57] Speaker 01:
But it's the express consent language that I'm

[00:35:03] Speaker 02:
But there's no difference in the express consent language related to an ATDS call or a, at least not that I've seen, between an ATDS call and a... But Van Patten was limited to the context of a one-on-one relationship.

[00:35:20] Speaker 01:
The gym, the person who was applying for gym membership gave the gym his number.

[00:35:28] Speaker 02:
Correct.

[00:35:29] Speaker 01:
And so that was consent for the gym to call the person.

[00:35:33] Speaker 02:
Correct.

[00:35:34] Speaker 01:
So, but that doesn't, that doesn't mean that in all context, providing a phone number is, is consent for, for all purposes.

[00:35:45] Speaker 01:
Is it?

[00:35:47] Speaker 02:
Why would it not be?

[00:35:48] Speaker 02:
There's no distinction in the statute that, and there was no distinction in, in the case that said- Well, we're not bound by this.

[00:35:56] Speaker 01:
My point is we're not bound by this case because it has specific facts that we are not dealing with.

[00:36:03] Speaker 02:
Hart v. Massenary were bound by this case.

[00:36:05] Speaker 02:
And I don't see, and to the extent that there's a distinction between, there's no distinction in the statute for, between prior express consent for an ATTS call or a prerecorded voice call.

[00:36:21] Speaker 02:
There simply isn't anything in the statute that says that.

[00:36:24] Speaker 01:
And to the extent the court would- But there's no definition of the express consent in the statute either.

[00:36:29] Speaker 01:
No, there's just the case law.

[00:36:31] Speaker 01:
interpreting express consent, and the statute does not do that.

[00:36:36] Speaker 01:
And so we, I am of the view that we can determine whether or not this definition, the reliance on the FCC definition in here, now the Chevron difference no longer applies, stands.

[00:36:53] Speaker 02:
Well, it's entitled to stare decisis.

[00:36:55] Speaker 02:
This panel can't overrule a prior panel.

[00:36:58] Speaker 00:
And Patton itself acknowledged that.

[00:37:01] Speaker 00:
The actual communication at issue in Van Patten now would not be covered by prior express consent under the then new FCC rules which imposed for commercial advertisements and the like.

[00:37:17] Speaker 00:
a prior written express requirement, but said that this communication was prior to that and therefore exempted.

[00:37:23] Speaker 00:
So even then Pat acknowledges it wasn't valid on its own facts going forward.

[00:37:28] Speaker 02:
Prior written express consent applies to the do not call list.

[00:37:33] Speaker 02:
And not to, it does not apply to A1, I'm sorry, B1A3.

[00:37:41] Speaker 02:
That does not require prior express written consent.

[00:37:46] Speaker 02:
It merely requires prior express consent, which is what Van Patten dealt with.

[00:37:52] Speaker 00:
FCC orders that took effect after the text messages at issue in this case further explain the FCC's interpretation of prior express consent.

[00:38:01] Speaker 00:
In 2012, the FCC imposed further restrictions on telemarketing calls and required prior express written consent for texts and calls that include or introduce an advertisement or constitute

[00:38:12] Speaker 00:
telemarketing because the alleged conduct here took place before the rule took effect on October 16, 2013.

[00:38:18] Speaker 00:
Defendants need not have obtained prior express written consent from Van Patten.

[00:38:24] Speaker 00:
Doesn't that say that it's no longer operative even on its own facts going forward?

[00:38:29] Speaker 02:
No, Your Honor, because the prior express written consent applies to, we're not talking about, when we're talking about, we just still have to have prior express consent unless

[00:38:42] Speaker 02:
It is a commercial advertisement unless, and the other, I'm sorry, the other two or three things that the court mentioned there.

[00:38:49] Speaker 02:
And those actually, an advertisement, those actually fall within the do not call prohibition, not the B1A3 prohibition.

[00:39:01] Speaker 01:
Counsel, is there a consent issue in this case?

[00:39:05] Speaker 02:
Absolutely.

[00:39:06] Speaker 02:
He never consented.

[00:39:07] Speaker 02:
Mr. Howard never provided his phone number.

[00:39:12] Speaker 01:
Did the defendant say that there was consent?

[00:39:16] Speaker 02:
No.

[00:39:16] Speaker 01:
They've never claimed there was consent, so I guess no.

[00:39:19] Speaker 02:
At this stage of the proceedings, Your Honor, that's absolutely correct.

[00:39:23] Speaker 02:
There is no consent issue because we allege that he did not consent and defendants can't argue otherwise.

[00:39:32] Speaker 01:
I've seen a lot of times talking about an issue that's not an issue.

[00:39:36] Speaker 01:
You have anything to sum up?

[00:39:43] Speaker 02:
Facebook, the Facebook case that was talked about in footnote 8 specifically says artificial pre-recorded voice is banned irrespective of the type of technology used.

[00:39:57] Speaker 02:
To this distinction quickly between text calls and voice calls, E8D of the statute recognizes that a text messaging service is a service provided as part of or in connection with a voice service.

[00:40:11] Speaker 01:
We understand your argument.

[00:40:12] Speaker 01:
We've taken you way over your time.

[00:40:14] Speaker 02:
I understand.

[00:40:15] Speaker 01:
Thank you, Your Honor.

[00:40:16] Speaker 01:
Thank you to both counsel for your helpful arguments.

[00:40:18] Speaker 01:
The case just argued is submitted.

[00:40:20] Speaker 01:
Judge Fitzwarne, do you have any questions?

[00:40:22] Speaker 01:
I'm sorry.

[00:40:22] Speaker 03:
We didn't get... It was answered.

[00:40:25] Speaker 03:
Thank you.

[00:40:25] Speaker 01:
Oh, okay.

[00:40:26] Speaker 01:
All right.

[00:40:26] Speaker 01:
Thank you to both counsel for your helpful arguments.

[00:40:28] Speaker 01:
The case just argued is submitted for decision by the court.