There are two types of text messages — SMS and MMS. SMS messages are traditional text messages in that they only contain text. MMS messages are similar to SMS, but they can contain multimedia, like video. A District Court judge in Arizona has granted a defendant’s motion to dismiss a Telephone Consumer Protection Act suit after the plaintiff received a video file from the defendant via text and filed suit, claiming the message contained an artificial or pre-recorded voice on the grounds that the plaintiff had to make the choice whether to play the video or not.
The Background: The plaintiff received a text message from the defendant that contained a video file, which was a recording about an upcoming election. The video contained the voice of a narrator. The plaintiff also claimed never to have provided consent to be contacted on her cell phone. She filed suit, alleging the defendant violated Section 227(b)(1)(A)(iii) of the TCPA by leaving a message on her cell phone and Section 227(b)(1)(B) because her cell phone serves as her residential phone.
The Ruling: While Congress enacted the TCPA to eliminate intrusive telephone calls, the law is not broad enough that every single video sent via text message is a potential violation, noted Judge Steven P. Logan of the District Court for the District of Arizona. The plaintiff had to make a “conscious choice” to engage with the video and that is different from what the TCPA intended when it said calls couldn’t be made with a prerecorded voice.
- The plaintiff tried to compare the message to voicemails that are left on a phone and then played later, but the argument didn’t convince Judge Logan because text messages are not phone calls.
- “As stated previously, both the Ninth Circuit and the FCC distinguish between the two,” Judge Logan wrote. “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.”
