Ninth Circuit Holds a Text With an Embedded Video Is Not a Prerecorded Voice Call Under the TCPA

The bottom line: under the Ninth Circuit's reading, § 227(b)'s prerecorded voice prohibitions reach calls that begin with a prerecorded voice, not messages that play one only if the recipient chooses.

Here is what happened

For purposes of the appeal, the court accepted the facts in the complaint as true. The plaintiff, Jacob Howard, is an Arizona resident whose cell phone serves as his residential line. On October 24, 2020, in the final weeks of the presidential election campaign, the Republican National Committee (RNC) allegedly "placed, or caused to be placed, an automated text message" to his cell number.

The message purported to relay a message from Ivanka Trump. It contained a few sentences urging the recipient to vote and a link to find an early voting location. It also included a video file that downloaded automatically and appeared as a still image thumbnail with a play button.

Howard alleged that the video contained an artificial or prerecorded voice. He did not allege that the video played automatically. To hear it, he had to press play.

The district court for the District of Arizona dismissed the complaint for failure to state a claim. The Ninth Circuit affirmed.

You can read the opinion here: Ninth Circuit opinion in Howard v. RNC.

The law

Two TCPA provisions were at issue:

1. 47 U.S.C. § 227(b)(1)(A)(iii) makes it unlawful, absent prior express consent, "to make any call" using an artificial or prerecorded voice to a cell phone.
2. 47 U.S.C. § 227(b)(1)(B) makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message."

The decision

Judge Collins wrote for the majority. The court held that, by their plain terms, these provisions "only reach the use of prerecorded voices in the manner in which a call is begun."

The court explained that the provisions target the nuisance of answering a call and hearing a prerecorded voice instead of a live person. Here, the recipient had to take a step after receiving the message in order to hear the video. Because the "call" was made and initiated without playing a prerecorded voice, it did not violate either provision. The court concluded that a broader reading would not fit the statutory text.

Judge Rawlinson dissented. She would have held that the text message with the video file fell within the TCPA's protections.

Why it matters

The decision is binding in the Ninth Circuit, which covers California, Arizona, Washington, Nevada, and several other western states. It narrows one theory plaintiffs have used against multimedia text campaigns.

The holding is limited. It addresses the prerecorded voice provisions of § 227(b). It does not address the TCPA's do not call provisions in § 227(c), quiet hours rules, or state telemarketing laws. Other circuits may reach different conclusions.

What this means for you

1. Do not read this decision as permission to send marketing texts without consent. Other TCPA and state law claims remain available.
2. If you send multimedia messages, confirm that audio and video do not play automatically.
3. Keep obtaining and documenting prior express written consent for marketing messages.
4. Watch how courts outside the Ninth Circuit treat similar claims.

The rule is narrower than some plaintiffs argued. Consent is still the safest course.