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

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. 

Chat soon!