Following the recent Ninth Circuit decision in Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264 (9th Cir. Aug. 8, 2023), see previous post, where the court held that SMS messages that lack any audible component are not pre-recorded voice calls, the District Court in Howard v. Republican Nat'l Comm., No. CV-23-00993-PHX-SPL, 2023 WL 7301861, (D. Ariz. Nov. 6, 2023), held that a Multimedia Messaging Service (“MMS”) text message did not constitute the use of a prerecorded voice message because the Plaintiff could make a “conscious choice” of whether or not to actively press play on the link to watch the video, and the text message itself did not include an audible component. Thus, the messages were not subject to the TCPA prohibition on pre-recorded voice calls to wireless numbers absent consent of the texted party or an emergency purpose, foiling another effort at creative pleading to sidestep the absence of an autodialer in the post-Facebook v. Duguid world.

In Howard, the plaintiff alleged violations of the TCPA for receipt of a MMS text to his cell phone which included a “video file that was automatically downloaded to [Plaintiff’s] phone and contained an artificial or prerecorded voice.” Based on a screenshot included in the Complaint, the Plaintiff had to actively press play on the link to watch the video. The link was to a video encouraging people to vote in the upcoming election. Defendant Republican National Committee argued that the message was not a “pre-recorded voice” call under the TCPA prohibition.

The TCPA makes it unlawful 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 ... artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C.§ 227(b)(1)(A)(iii). In Trim, the Ninth Circuit  interpreted a “prerecorded voice” to require audible sounds and that, to be actionable, text messages must include an audible component. Trim v. Reward Zone USA LLC, 76 F.4th 1157, 1161 (9th Cir. 2023).

Building on Trim, the court’s analysis in Howard focused on there being a “conscious choice” to engage with the audible component. Although, plaintiff alleged that the video automatically downloaded to his phone, in order to start watching the video, the link had to actively be pressed for it to start playing. The Court noted that the message provided a conscious choice of whether to engage with the audible component, but that this is different from what the TCPA intended by “make a call” using a “prerecorded voice”, or that as required by the Trim court, the text message “include an audible component.” Thus, in dismissing, the court noted that it could not find that the text message “had an audible component which was thrust upon the recipient, as required by the Ninth Circuit” in Trim.

Plaintiff also attempted to analogize the MMS message to a voicemail where an audible message is left for a recipient to play later, pointing out that other courts have found that the TCPA can extend to unwanted voicemails. The Court rejected this argument as voicemails are a result of voice calls, and both the Ninth Circuit and FCC have distinguished the difference between “text calls” and “voice calls”, where with voice calls, the recipient is required to engage with the audio component, which is not the case with text messages. 

Contemporaneously with Howard, the same court also dismissed the complaint in Crawford v. Nat'l Rifle Ass'n of Am., No. CV-23-00903-PHX-SPL, 2023 WL 7301864, (D. Ariz. Nov. 6, 2023). Like Howard, Crawford involved a text message sent to plaintiff’s cell phone which included a link to a video file that contained an artificial or prerecorded voice, which the recipient had to click on to watch. The court dismissed the complaint on the same basis as in Howard. Separately, the court also found that the defendant’s single text to the plaintiff was exempt under an exemption applicable to tax exempt organizations, such as the defendant political organization.