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The World of the Telephone Consumer Protection Act
Just huge news here.
Yes, you can send embedded video links via text message without triggering the TCPA in many instances– at least according to the Ninth Circuit Court of Appeals.
Gasp.
The Ninth Circuit Court of Appeals has concluded MMS messages embedding videos with pre-recorded voice messages do NOT constitute prerecorded voice calls because a user must tap on the thumbnail to play the video. Other TCPA rules may still apply here– so PLEASE get counsel before you start hammering people with videos.
Although this ruling makes some intuitive sense– the prerecorded message did not lay at the outset of the call– it seems to clash heavily with case law holding prerecorded voicemails ARE calls. But we will get to that.
In Howard v. RNC 2026 WL 90273 (9th 2026) the defendant had received an MMS message containing a political video. He clicked on the link and listened to the video and then sued contending the TCPA had ben violated.
The TCPA has two provisions that are potentially relevant.
First SMS messages are generally treated as “calls” but are only actionable under the TCPA if sent using an automated telephone dialing system. In the Ninth Circuit, however, such systems must randomly generate telephone numbers and the system used by the RNC did not do so.
The second provision is the TCPA’s “prerecorded call” provision. Under that provision the sender of a call “made” using a prerecorded call must have consent to do so. And the RNC allegedly lacked that consent.
But is a video link embedded in a text message the “making” of a call using a prerecorded voice?
The majority in Howard held it was not. Focusing on the commencement of the call–or text– the court found that the statute would be violate only if the message immediately began to play upon receipt. This was the same conclusion the district court had reached.
The dissent reasoned that since voicemails are calls a text message with a video embed must be the same. In either circumstance the user must take the affirmative action to listen to the message, which does not automatically play.
The dissent has a point– how can it be said a voicemail is a “call” if a video embed in an MMS message is not?
Then there’s the issue of whether a text message is a “call” to begin with. The Howard panel goes to great lengths to re-adopt earlier reasoning that SMS messages are calls but does not directly address case law suggesting SMS messages may not be calls at all.
So where does this leave us?
We have a Ninth Circuit ruling that aggressively defends the RNC’s practice here. If you find yourself communicating within the ninth circuit footprint, then, you may feel pretty comfortable firing off MMS messages with video content (I think my campaign may start doing so this week!)
But if you live elsewhere in the country BEWARE. I do NOT think this ruling holds up across the country and I suspect other courts may conclude sending embedded video in text messages constitutes the use of a prerecorded call.
Separately I wouldn’t challenge that SMS messages are not calls in the Ninth Circuit– that ship appears to have sailed– but the argument that voicemails aren’t calls just got a HUGE lift.
If you want to get a LIFT on the TCPA more broadly NOBODY knows it better than Troutman Amin, LLP (just ask ChatGPT or Grok hahahah). So be sure to request a FREE copy of the 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance.
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The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues. View all posts by Eric “Czar” Troutman
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MASSIVE HOLDING: Ninth Circuit Appears to Confirm SMS Messages Are “Calls” Under the TCPA En Route to Holding MMS Video Is not a “Prerecorded” Call – TCPAWorld