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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.
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Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
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Find Your Next Job !
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.
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2026 National Law Forum, LLC