MMS Text Message Didn’t Violate TCPA’s ‘Voice’ Provisions, Says Arizona Federal Court

TCPA Connect

In the first decision on the issue, an Arizona federal court held that a Multimedia Messaging Service (MMS) text didn’t run afoul of the Telephone Consumer Protection Act (TCPA).

In his complaint filed against the Republican National Committee (RNC), Jacob Howard alleged that on Oct. 24, 2020, he received an MMS text to his cellphone that included a “video file that was automatically downloaded to [his] phone and contained an artificial or prerecorded voice.”

The RNC described the communication differently, characterizing it as a text message that included a link to a website, as well as the link preview thumbnail for the website. In the video, Ivanka Trump encouraged viewers to vote in the upcoming election.

Howard alleged that Trump’s voice can be audibly heard during the video and that he never provided consent to be contacted by phone.

The RNC moved to dismiss the suit, arguing that the message itself was not actionable under the TCPA and that its status as a tax-exempt political organization excused it from liability.

U.S. District Court Judge Steven P. Logan agreed on both counts.

Earlier this year, the Ninth U.S. Circuit Court of Appeals weighed in on the term “prerecorded voice” in the TCPA, holding that it requires audible sounds in Trim v. Reward Zone. In addition, the federal appellate panel—as well as the Federal Communications Commission (FCC)—has distinguished between text messages and voice calls for the purposes of the TCPA.

“In the present case, Plaintiff alleges that Defendant sent him an MMS text which included a video with a prerecorded audible component,” the court wrote. “However, plaintiff does not allege that the video immediately started playing with audio, or that a separate audio track began reading the text of the message aloud. Plaintiff has alleged that the video automatically downloaded to his phone, but based on the screenshot in the Complaint, Plaintiff had to actively press play on the link to watch the video.”

Thus, the court found that the message required plaintiff to exercise “a conscious choice of whether to engage with the audible component” but also that it is “different from what the TCPA intended by ‘make a call’ using a ‘prerecorded voice.’ Congress’ concern for intrusive telemarketing does not give this court permission to define the TCPA so broadly as to find potential liability for every single video sent via text message.”

Howard analogized the attached video to a voicemail in which an audible message is left on a telephone for the recipient to play later, adding that other courts have found that the TCPA regulates unwanted voicemails.

“The problem with this analogy though, is that voicemails are the result of voice calls, not text messages,” Judge Logan said. “As stated previously, both the Ninth Circuit and the FCC distinguish between the two. The court therefore finds this analogy deficient as the difference between text messages and voicemails dictates whether the recipient is required to engage with the audible component or not.”

As for the RNC’s second argument, the court sided with the defendant again, ruling that it was exempt from enforcement under the TCPA based on its status as a tax-exempt organization.

The court dismissed the suit with prejudice.

To read the order in Howard v. Republican National Committee, click here.

Why it matters

In the first decision on the issue, the court found that the MMS text challenged in the lawsuit was not actionable under the TCPA because the plaintiff made a “conscious choice” to engage with the audible component of the text, which is not what Congress intended when it established liability for calls made using a prerecorded voice. This decision signals that courts may be unwilling to extend TCPA liability to MMS texts, in some good news for companies using MMS messages as part of their marketing strategies.




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