Same Phoenix Judge Dismisses 2 TCPA Cases, Finds Video-Laden Texts Not Actionable

U.S. District Judge Steven Logan for Arizona in Phoenix issued nearly identically worded orders Friday in two separate Telephone Consumer Protection Act cases -- Crawford v. National Rifle Association Political Victory Fund (docket 2:23-cv-00903) and Howard v. Republican National Committee (docket 2:23-cv-00993) -- in which he granted the defendants' motions in both cases to dismiss with prejudice and without leave for the plaintiffs to amend.

The plaintiffs in both cases alleged the defendants sent them unsolicited text messages with video files that downloaded automatically to their phones and contained artificial or prerecorded voices. The defendants responded by arguing that the messages themselves didn’t qualify as actionable under the TCPA. The same attorney, Jon Phelps of Phelps & Moore in Scottsdale, represented both plaintiffs in the two cases.

Neither plaintiff alleged that the downloaded videos automatically began playing, said Logan’s orders. He found in both cases that the messages “provided a conscious choice of whether to engage with the audible component, but that this is different from what the TCPA intended” by making a call using a prerecorded voice, said his orders.

Congressional concern for intrusive telemarketing doesn’t give the court “permission to define the TCPA so broadly as to find potential liability for every single video sent via text message,” said his order. As a result, the court can’t find that the text messages had an audible component that was “thrust" on the recipients, as required under 9th Circuit U.S. Court of Appeals precedent, they said.

To address that “deficiency,” both plaintiffs “analogized” the attached video “to a voicemail in which an audible message is left on a telephone for the recipient to play later,” said his orders. The plaintiffs also argued that other courts have found that the TCPA “regulates unwanted voicemails,” they said.

But the “problem" with that analogy is that voicemails are “the result of voice calls, not text messages,” said his orders. Both the 9th Circuit and the FCC “distinguish between the two,” it said. Logan therefore found in both cases “this analogy deficient as the difference between text messages and voicemails dictates whether the recipient is required to engage with the audible component or not,” said his orders.