A California federal court recently rejected a plaintiff’s contention that text messages from a chatbot fell within the provisions of the Telephone Consumer Protection Act (TCPA) prohibiting unsolicited calls made using an “artificial or prerecorded voice.”
Clarence Risher filed suit against Adecco and Locutus, alleging that the defendants sent text messages to his cellphone soliciting him for possible employment through Adecco, which operates a job placement site.
Risher claimed that the first message stated, “Hello Clarence, this is Mya from Adecco. We’re hiring for refurbisher roles, and I thought you might be interested. Do you have a minute to chat via text? You can also reply ‘no more texts.’”
A few hours later, he received a second message that stated, “Hi Clarence! It’s Mya again. Are you free to chat for a few minutes?”
Mya was not a human being but a chatbot—a computer program utilizing artificial intelligence to recognize a consumer’s responses and lead a conversation with an individual in natural language by mimicking a human. Mya was developed and operated by Locutus under a contractual relationship with Adecco.
In the absence of express consent, 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 to a cellphone that are made “using any automatic telephone dialing system or an artificial or prerecorded voice.”
Risher did not argue that an autodialer was used; instead, he told the court that while the text messages sent to him did not contain a “voice” of audible, spoken words, the messages had a “voice” in a metaphorical sense, as the very purpose of the Mya chatbot is to create the impression of an interactive human “voice,” responding conversationally.
Further, the texts represent the very type of automated mass messaging that the TCPA was intended to prevent, Risher said.
U.S. District Court Judge Richard Seeborg acknowledged that Risher’s position was “not frivolous.”
“As one court observed, ‘the policy of protecting telephone privacy might be advanced by a prohibition on unwanted text messages,’” he wrote, but he added that the same court went on to hold “‘that is not what the TCPA currently does.’ Rather, ‘in common parlance, text messages simply are not considered ‘voices,’ and the statute should be understood by the ordinary meaning of its words.”
Interpreting “voice” metaphorically is even less plausible given that the TCPA bans “prerecorded voices,” Judge Seeborg pointed out. “To ‘record’ is ‘[t]o convert (sound or visual scenes, esp. television pictures) into permanent form.’ This definition matches perfectly with the sound sense of ‘voice,’ but not with the metaphorical one.”
As Risher’s claim failed on the legal conclusion that the text messages did not fall within the statutory language, the court declined to grant leave to amend the complaint and dismissed the claim.
To read the order in Risher v. Adecco Inc., click here.
Why it matters: While the court found the plaintiff’s position was not frivolous, it was not persuaded by the argument that the chatbot’s attempt to imitate human conversation constituted a metaphorical voice that was actionable under the TCPA.