Jonathan Loyhayem , individually and on behalf of all others similarly situated v. FRASER FINANCIAL AND INSURANCE SERVICES , INC.; DOES , 1 through 10, inclusive

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J ONATHAN LOYHAYEM , individually
and on behalf of all others similarly
situated,
Plaintiff-Appellant,
v.
FRASER FINANCIAL AND I NSURANCE
SERVICES , I NC.; DOES , 1 through 10,
inclusive,
Defendants-Appellees.
No. 20-56014
D.C. No.
2:20-cv-00894-
MWF-JEM
OPINION
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted July 6, 2021
Pasadena, California
Filed August 10, 2021
Before: D. Michael Fisher,* Paul J. Watford, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Watford
* The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.

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2 LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS .
SUMMARY**
Telephone Consumer Protection Act
The panel reversed the district court’s dismissal for
failure to state a claim of an action alleging violation of the
Telephone Consumer Protection Act in a job-recruitment
“robocall” made to plaintiff’s cell phone.
The panel held that the prohibition in the Act and its
implementing regulation, 47 C.F.R. § 64.1200, against
robocalls to cell phones is not limited to calls that include an
advertisement or constitute telemarketing. The panel
concluded that plaintiff’s allegations sufficed to survive a
motion to dismiss, and it therefore reversed and remanded.
COUNSEL
Adrian Bacon (argued), Todd M. Friedman, Meghan E.
George, Thomas E. Wheeler, Law Offices of Todd M.
Friedman, Woodland Hills, California, for Plaintiff-
Appellant.
Wendy M. Thomas (argued) and Betty T. Huynh, Tadjedin
Thomas & Engbloom La Group LLP, Culver City,
California, for Defendants-Appellees.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS . 3
OPINION
WATFORD, Circuit Judge:
To protect consumers’ privacy interests, Congress
enacted the Telephone Consumer Protection Act of 1991
(TCPA). Among other things, the TCPA generally makes it
illegal to place what are colloquially known as “robocalls”
to someone’s home phone or cell phone, subject to differing
rules depending on which type of phone number is called.
47 U.S.C. § 227(b)(1)(A)–(B). The statutory provision at
issue here, which governs calls made to cell phones,
provides in relevant part: “It shall be unlawful for any
person . . . to make any call (other than a call made for
emergency purposes or made with the prior express consent
of the called party) using any automatic telephone dialing
system or an artificial or prerecorded voice” to “any
telephone number assigned to a . . . cellular telephone
service.” § 227(b)(1)(A)(iii).
The plaintiff in this case, Jonathan Loyhayem, filed this
action under the TCPA after receiving a call to his cell phone
that, he contends, violated the statutory provision just
quoted. According to Loyhayem’s complaint, the caller left
a pre-recorded voicemail message that stated the following:
Hi, this is Don with Fraser Financial. It’s a
Mass Mutual Company. I recently saw your
industry experience and I wanted to let you
know that we’re looking to partner with
select advisors in the Los Angeles area. I
thought you might be a fit. We use a financial
planning process to help clients reach their
goals. Just give me a call back at [phone
number] if you’re looking for a change and
you’d like to learn how our business model

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4 LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS .
may be able to help take your practice to the
next level in 2020. The number again is
[phone number]. Thanks. I look forward to
hearing from you. Bye.
Loyhayem characterizes this call as a “job recruitment call,”
and he alleges that it was made using both an automated
telephone dialing system and an artificial or pre-recorded
voice. He also alleges that he did not expressly consent to
receiving calls of this type from Fraser Financial.
In the ruling under review, the district court dismissed
Loyhayem’s action under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be
granted. The court held that the TCPA and the relevant
implementing regulation, 47 C.F.R. § 64.1200, do not
prohibit making job-recruitment robocalls to a cellular
telephone number. The court read the Act as prohibiting
robocalls to cell phones only when the calls include an
“advertisement” or constitute “telemarketing,” as those
terms have been defined by the Federal Communications
Commission (FCC). § 64.1200(f)(1), (13). Since
Loyhayem admitted that the job-recruitment call he received
did not involve advertising or telemarketing, the court
concluded that he had not adequately pleaded a violation of
the TCPA. Loyhayem challenges that ruling on appeal.
We agree with Loyhayem that the district court misread
both the TCPA and the implementing regulation. As for the
Act itself, it does not prohibit making robocalls to cell
phones only if the calls involve advertising or telemarketing.
The applicable statutory provision prohibits in plain terms
“any call,” regardless of content, that is made to a cell phone
using an automatic telephone dialing system or an artificial
or pre-recorded voice, unless the call is made either for

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LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS . 5
emergency purposes or with the prior express consent of the
person being called. 47 U.S.C. § 227(b)(1)(A)(iii).1
Loyhayem adequately alleged that the call he received was
not made for emergency purposes, see 47 C.F.R.
§ 64.1200(f)(4), and that he did not expressly consent to
receiving it. So, at least as far as the statute is concerned,
Loyhayem has stated a valid claim for violation of the
TCPA.
Our review of the FCC’s implementing regulation leads
to the same conclusion. The portion of the regulation
relevant here closely tracks the language of the statute,
imposing the same broad prohibition on robocalls made to
cell phones, subject to a caveat reflected in the language
italicized below:
(a) No person or entity may:
(1) Except as provided in paragraph
(a)(2) of this section, initiate any telephone
call (other than a call made for emergency
purposes or is made with the prior express
consent of the called party) using an
automatic telephone dialing system or an
artificial or prerecorded voice;
. . .
(iii) To any telephone number
assigned to a paging service, cellular
1 In 2015, Congress added to this provision a content-based
exemption for calls made to collect a debt owed to the United States, but
the Supreme Court invalidated that exemption in Barr v. American
Association of Political Consultants, Inc., 140 S. Ct. 2335 (2020).

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6 LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS .
telephone service, specialized mobile
radio service, or other radio common
carrier service, or any service for which
the called party is charged for the call.
47 C.F.R. § 64.1200(a)(1) (emphasis added).
Loyhayem adequately alleged facts establishing a
violation of this provision as well. The portion of the
regulation that he contends governs here, subsection
(a)(1)(iii), prohibits “any telephone call” made to a cell
phone—again, regardless of content—unless the call was
made either for emergency purposes or with the prior
express consent of the person being called.2 As noted,
Loyhayem has alleged facts plausibly suggesting that the call
he received did not involve an emergency and was not made
with his prior express consent. Thus, nothing in the
regulation supports dismissal of Loyhayem’s action at the
motion-to-dismiss stage.
The district court appeared to reach a contrary
conclusion by relying on the caveat alluded to earlier.
Section 64.1200(a)(1) includes the qualifier, “Except as
provided in paragraph (a)(2) of this section.” Paragraph
(a)(2) creates a separate prohibition applicable to a subset of
robocalls made to cell phones—those that involve
advertising or telemarketing. It provides in relevant part:
(a) No person or entity may:
2 The FCC has created several narrow, content-based exemptions to
this broad prohibition, but none of those exemptions applies here. See
47 C.F.R. § 64.1200(a)(1)(iv), (a)(9).

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LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS . 7
. . .
(2) Initiate, or cause to be initiated, any
telephone call that includes or introduces an
advertisement or constitutes telemarketing,
using an automatic telephone dialing system
or an artificial or prerecorded voice, to any of
the lines or telephone numbers described in
paragraphs (a)(1)(i) through (iii) of this
section, other than a call made with the prior
express written consent of the called party
. . . .
47 C.F.R. § 64.1200(a)(2). For robocalls involving
advertising or telemarketing, paragraph (a)(2) requires prior
express written consent, whereas the calls covered by
paragraph (a)(1) require prior express consent, which may
be given either orally or in writing. See In the Matter of
Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7971
(2015).
The district court read paragraph (a)(2) as effectively
removing robocalls to cell phones from the scope of the
TCPA’s coverage unless the calls involve advertising or
telemarketing. That is an incorrect reading of the regulation.
The FCC amended 47 C.F.R. § 64.1200 to add paragraph
(a)(2) in 2012. Before the amendment, paragraph (a)(1) read
in all material respects just as it does today. It governed all
robocalls to cell phones, and it required then, as it does now,
that non-emergency robocalls be made with the “prior
express consent” of the party being called. See 47 C.F.R.
§ 64.1200(a)(1)(iii) (2012). The FCC added paragraph
(a)(2) to impose a heightened consent requirement for the
subset of robocalls that involve advertising or telemarketing

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8 LOYHAYEM V . FRASER F INANCIAL & I NS . SERVS .
because the agency determined that, as to those calls, the
existing consent requirements had proved ineffective in
protecting consumers’ privacy interests. 77 Fed. Reg.
34,233, 34,235, ¶ 7 (June 11, 2012). At the same time, the
FCC made clear that it was maintaining the existing consent
requirement found in paragraph (a)(1) for all other robocalls
made to cell phones. See id. at 34,236, ¶ 11 (noting that the
Commission was “maintain[ing] the existing consent rules
for non-telemarketing, informational calls”); id. ¶ 12 (noting
that “section 227(b)(1)(A) of the Act and its implementing
rules continue to require some form of prior express consent
for autodialed or prerecorded non-telemarketing calls to
wireless numbers”).
The district court thus erred by overlooking paragraph
(a)(1) of § 64.1200 and focusing exclusively on paragraph
(a)(2). Loyhayem did not allege that the call he received
involved advertising or telemarketing, but that simply means
the heightened written consent requirement imposed by
paragraph (a)(2) does not apply. Loyhayem’s case is still
governed by paragraph (a)(1), which requires that prior
express consent have been given either orally or in writing.
Loyhayem adequately alleged that he did not consent orally
or in writing to receiving Fraser Financial’s call. His factual
allegations suffice to survive a motion to dismiss.
REVERSED and REMANDED.

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