For the purposes of the Telephone Consumer Protection Act, text messages are considered phone calls, courts have largely ruled. But what about a text message that contains a video? The Court of Appeals for the Ninth Circuit has affirmed a lower court’s ruling that texts with videos that require an individual to “affirmatively act” to choose to listen and watch the video are not subject to the statute. In a decision that will be closely watched by compliance teams and digital strategy leaders, the Ninth Circuit held that the TCPA’s restrictions on artificial or prerecorded voices apply only to how a call is made or initiated, not to optional content that a recipient chooses to engage with after the fact.
The background: The plaintiff alleged that the defendant sent an unsolicited text message to his cell phone that included written text and a video file. The video contained an artificial or prerecorded voice, and the plaintiff argued that this alone brought the message within the TCPA’s prohibitions.
- He claimed he never gave prior express consent to receive such communications and that the message was an invasion of privacy.
- Importantly, while the video file was automatically downloaded as part of the message, it did not play automatically. The recipient had to tap the thumbnail or play button to hear or view the video.
- The plaintiff alleged that sending the text with the embedded video violated the TCPA’s restrictions on calls made using an artificial or prerecorded voice.
The ruling: The Ninth Circuit rejected that theory. The court emphasized that the TCPA bars calls made or initiated using an artificial or prerecorded voice. According to the court, those verbs matter.
- A text message that contains only written content and a silent video thumbnail is not made using a prerecorded voice when the voice is heard only if the recipient takes a separate, voluntary step to play the video. As the court put it, the statute “only reaches the use of prerecorded voices in the manner in which a call is begun.” The panel analogized the message to a live caller who asks whether the recipient wants to hear a recorded message. In that scenario, the call itself is not initiated using a prerecorded voice.
- The court also noted that extending the TCPA to cover optional video content would lead to unreasonable results, potentially sweeping in common and benign practices that Congress did not intend to regulate.
- Notably, the decision was not unanimous. In a dissenting opinion, one judge argued that the TCPA should apply whenever a call, including a text message, contains prerecorded voice content, regardless of whether the recipient must take an additional step to hear it. The dissent emphasized the statute’s consumer protection purpose and warned that the majority’s interpretation improperly narrowed the law’s scope.
