On January 13, the U.S. Court of Appeals for the 9th Circuit affirmed the dismissal of a putative class action lawsuit challenging unsolicited text messages containing video files under the Telephone Consumer Protection Act (TCPA). The plaintiff alleged that, during the final weeks of a presidential election campaign, he received an automated text message from a political committee that included a video with a prerecorded voice, which was automatically downloaded to his phone. He claimed the message was an invasion of privacy and sought statutory damages and injunctive relief for himself and similarly situated individuals. The district court dismissed the complaint, finding that the conduct did not violate the TCPA and that the message fell within regulatory exemptions for nonprofit organizations.
On appeal, the 9th Circuit held that the TCPA does not prohibit, “absent prior express consent,” sending text messages with video files, even if those videos contain artificial or prerecorded voices. The panel reasoned that the TCPA’s language only restricts the use of prerecorded voices in the initiation or making of a call, and since recipients must actively choose to play the video after receiving the message, the statute’s protections do not apply in this context. The majority emphasized that the TCPA is designed to protect privacy against calls “initiated with” prerecorded voices, while a dissenting judge argued that the plain language of the TCPA should cover “any call” using an artificial or prerecorded voice regardless of when the voice is played.
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