The Ninth Circuit Court of Appeals clarified the scope of the Telephone Consumer Protection Act (TCPA) as it applies to modern communication technologies. The court held that sending a text message containing a video file, which must be actively played by the recipient, does not violate the TCPA’s restrictions on calls made using an artificial or prerecorded voice.
What Constitutes a “Call Using a Prerecorded Voice”?
Plaintiff received an unsolicited text message with a video file, but the video did not play automatically; instead, the recipient had to tap the file to hear the audio. The plaintiff argued this constituted a prohibited call under the TCPA.
The court affirmed the dismissal of the complaint, focusing on the statutory language and the privacy interests the TCPA was designed to protect. Key points from the decision include:
- Text Messages as Calls: The court reaffirmed that text messages are considered “calls” under the TCPA, consistent with prior precedent.
- “Using a Prerecorded Voice”: The court interpreted the statute to prohibit only those calls that are made or initiated with an artificial or prerecorded voice. In other words, the TCPA targets calls where the recipient is immediately and involuntarily subjected to a prerecorded voice upon answering.
- Active Engagement Required: Because the video file in the text message required the recipient to take affirmative action (i.e., tap to play), the court found that the call was not “made” or “initiated” using a prerecorded voice. The initial contact was silent, and any subsequent playing of the video was a voluntary act by the recipient.
Regulatory Exemptions
The court also referenced regulatory exemptions for certain nonprofit organizations, but the primary holding rested on the interpretation of the statutory language itself.
Dissenting View
A dissenting judge argued for a broader interpretation, suggesting that any call—including a text message—that contains a prerecorded voice should fall within the TCPA’s protections, regardless of whether the voice is played automatically or requires user action. The dissent cautioned against judicially narrowing the statute beyond its plain language.
Howard v. Republican Nat’l Comm., No. 23-3826, 2026 WL 90273 (9th Cir. Jan. 13, 2026).
