The Telephone Consumer Protection Act prohibits “mak[ing] any call . . . using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service,” or “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message,”without prior express consent of the recipient. Today, in Howard v. RNC, a divided 9th Circuit held that neither prohibition extends to text messages containing prerecorded videos.
First, the good news for consumer advocates. The 9th Circuit had previously deferred under Chevron to the FCC’s conclusion that the word “call” in the statute includes text messages. In the opinion today, the court went further and held that, under the best reading of the statute, “a text message is properly deemed to be a ‘call’ within the meaning of the TCPA.”
But the plaintiff consumer, who received an unsolicited text containing a prerecorded video of Ivanka Trump speaking, lost nonetheless. The majority concluded that the text was not “made” or “initiated” “using” a prerecorded voice. Only a call that is “begun with an artificial or prerecorded voice,” the court concluded, falls within the scope of the prohibition; and the statute does not prohibit a prerecorded voice sent after the call is “made” or “initiated.” The text here, the court held, “was made or initiated by its textual content and its silent inclusion of a ready-to-play video file,” and the voice was only heard if the plaintiff pressed play.
Dissenting, Judge Rawlinson would have found the plaintiff stated a claim, because the “video file was sent contemporaneously with the text message.” She would have rejected the requirement that the call be “begun” with a prohibited voice recording, finding the majority opinion inconsistent with canons of statutory interpretation and circuit precedent.
