The U.S. Court of Appeals for the Ninth Circuit ruled Monday that the Telephone Consumer Protection Act does not prohibit the sending of text messages containing video files without prior express consent, affirming a lower court's dismissal of a putative class action lawsuit against the Republican National Committee.
In *Howard v. Republican National Committee*, the appeals court held that the TCPA's restrictions on prerecorded voice calls do not extend to text messages with embedded video content. The decision, written by Judge Daniel P. Collins with a dissent by Judge Johnnie B. Rawlinson, creates new precedent for how federal robocall protections apply to multimedia messaging.
Jacob Howard filed the lawsuit on behalf of himself and others similarly situated, challenging the RNC's practice of sending unsolicited text messages containing video files. Howard argued that these messages violated the TCPA's prohibition on calls using artificial or prerecorded voices to cellular telephone numbers without prior express consent.
The TCPA generally makes it unlawful, absent prior express consent, to make calls using artificial or prerecorded voices to cellular telephone numbers or to initiate calls to residential lines using artificial or prerecorded voices to deliver messages. The statute was enacted in 1991 to protect consumers from unwanted automated calls and has been a key tool in combating robocalls and spam.
However, the Ninth Circuit found that the statutory text only reaches the use of prerecorded voices "in the manner in which a call is begun." The court emphasized that although the text message contained a video file, the recipient had to take affirmative action after receiving the message to choose to listen to the video content.
"By its plain terms, the statutory text only reaches the use of prerecorded voices in the manner in which a call is begun," the court wrote. The panel distinguished between the initial transmission of a text message and the subsequent decision by a recipient to play embedded video content.
The case originated in the U.S. District Court for the District of Arizona, where Judge Steven P. Logan dismissed the complaint for failure to state a claim. Howard appealed that dismissal to the Ninth Circuit, which heard oral arguments in September 2024 in Phoenix.
The ruling creates a potential gap in consumer protection for multimedia messaging, as political organizations and other entities may now send text messages with video content without obtaining prior consent under the TCPA. This interpretation could affect how campaigns, marketers, and other organizations approach text message marketing strategies.
The decision comes at a time when political text messaging has become increasingly sophisticated, with campaigns using multimedia content to reach voters. The RNC, like many political organizations, has relied heavily on text messaging for voter outreach and fundraising efforts.
Judge Rawlinson's dissent suggests disagreement within the panel about the proper scope of TCPA protections in the digital age. While the full text of the dissent was not available, the notation indicates concerns about limiting consumer protections for evolving communication technologies.
The TCPA has been the subject of numerous court interpretations as technology has evolved beyond the traditional voice calls it was originally designed to regulate. Courts have grappled with how to apply 1990s-era language to modern communication methods including text messages, emails, and multimedia content.
This ruling may influence how other federal circuits interpret similar cases involving multimedia messaging and TCPA compliance. The decision could also prompt legislative action if consumer advocates argue that the statute needs updating to address modern communication technologies.
For political organizations, the ruling provides clarity that text messages containing video files may be sent without triggering TCPA liability, provided the video content is not automatically played upon message receipt. This interpretation focuses on the initial transmission method rather than the eventual consumption of multimedia content.
The case also highlights the ongoing tension between political speech protections and consumer privacy rights. Political organizations have argued that overly broad interpretations of the TCPA could impede their First Amendment rights to communicate with voters.
Consumer advocates may view the decision as weakening important protections against unwanted communications. The ruling could encourage more organizations to use embedded video content in text messages as a way to circumvent TCPA restrictions.
The decision is published, meaning it establishes binding precedent within the Ninth Circuit's jurisdiction, which covers nine western states including California, Arizona, and Washington. Organizations operating in these states can now rely on this interpretation when designing their text messaging campaigns.
No immediate indication exists that either party plans to seek Supreme Court review, though the decision's impact on consumer protection and political communications may generate broader legal challenges to the TCPA's scope in the multimedia era.