A district court in the District of Arizona granted a motion to dismiss in a Telephone Consumer Protection Act (TCPA) case on the basis that multimedia messaging service (MMS) texts do not constitute prerecorded messages unless the audible component plays automatically upon opening.

In Howard v. Republican National Committee, the plaintiff alleged that defendant sent an MMS text to his cell phone that included a “video file that was automatically downloaded to [the plaintiff’s] phone.” The video file included an audio recording encouraging people to vote in the upcoming election. The plaintiff alleged that he never gave the defendant consent to be contacted by telephone.

The plaintiff filed suit pursuant to 47 U.S.C. §§ 227(b)(1)(A)(iii) (for leaving a message on his cell phone) and (b)(1)(B) (for leaving the message on his cell phone which serves as his residential phone). The defendant filed a motion to dismiss asserting, among other things, that the text message at issue is not a prerecorded voice under the TCPA.

The TCPA prohibits the making of “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any … artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service.” Recently, in a decision discussed here, the Ninth Circuit held that “prerecorded voice” required an audible component.

While the plaintiff alleged that the MMS he received included a video with an audible component, he did not allege the recording started playing automatically. For the court, this deficiency was fatal. The plaintiff “alleged that the video automatically downloaded to his phone, but based on the screenshot in the [c]omplaint, [the plaintiff] had to actively press play to watch the video. Thus, the [c]ourt finds that the message provided a conscious choice of whether to engage with the audible component, but that this is different from what the TCPA intended by ‘make a call’ using a ‘prerecorded voice.'”

The plaintiff attempted to address this perceived deficiency by analogizing the MMS to a voicemail that was left for the recipient to be played later. The plaintiff further noted that other courts have found such unwanted voicemails to come within the TCPA’s purview. The court was not swayed. “The problem with the analogy, though, is that voicemails are the result of voice calls, not text messages.” The court ultimately held that it could not find the message had an audible component that was “thrust upon the recipient” as required by the Ninth Circuit. The court also dismissed the plaintiff’s claim under (b)(1)(B), finding the defendant was a tax-exempt nonprofit organization that made no more than three calls within a 30-day period and, thus, came under the statutory exception for calls to residential lines.

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