Amicus Brief Asks 9th Circuit to Fix District Court’s ‘Erroneous Interpretation’ of TCPA

The Telephone Consumer Protection Act restriction on artificial and prerecorded voice messages applies to any call, including calls sent via MMS, said the Electronic Privacy Information Center and the National Consumer Law Center in an amicus brief Wednesday (docket 23-3826) in the 9th U.S. Circuit Court of Appeals. The brief supports plaintiff-appellant Jacob Howard’s appeal to reverse the district court’s dismissal of his TCPA complaint against the Republican National Committee (see 2402080021).

Howard’s appeal alleges that the RNC sent him unsolicited text messages with video files that downloaded automatically to his phone and contained artificial or prerecorded voices, in violation of the TCPA. But U.S. District Judge Steven Logan for Arizona in Phoenix held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing. The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order.

Though Congress didn’t define the term “call” when it enacted the TCPA in 1991, courts and agencies have universally held that the method of initiating or transmitting a call is irrelevant, and that text messages are calls for the purposes of the TCPA, said Wednesday’s amicus brief. The term “voice” also doesn’t exclude MMS messages, it said. The term “voice” refers to the audio component of a call, “not the technology used to transmit or receive the call,” it said. MMS calls “can have an audio component, and so can be made using a prerecorded voice,” it said.

The district court made a “major misstep” by misreading “voice” to mean “voice call,” said the brief. It’s an “ambiguous term” that could mean either a call with a voice component or the voice-only call “historically transmitted and received through a telephone handset," it said.

The district court then used the latter interpretation to establish a “false distinction” between MMS text calls and voice calls, said the brief. “This equivocation can be avoided by sticking to the plain text of the statute,” it said.

The district court also “conjured” a requirement that artificial and prerecorded voice messages must automatically play for the called party, which has “no basis” in the text, purpose or history of the TCPA, said the brief. It’s also “inconsistent” with FCC and court decisions “finding that voicemails are calls subject to the artificial and prerecorded voice restriction," it said.

The TCPA “regulates ways of making a call, not circumstances of receipt,” said the brief. The receivers’ actions “are irrelevant for determining liability,” it said. What matters is that the caller “made a call using proscribed technology without consent,” it said. The district court’s concerns about “overbreadth” could have been addressed through other interpretive means “than creating a glaring loophole in the artificial and prerecorded voice restriction,” it said. It particularly “overlooked the significance of consent in negating the risk of casual violations,” it said.

MMS messages that include an artificial or prerecorded voice “inflict the same harm on consumers as other artificial or prerecorded calls,” said the brief. In cases involving internet-to-phone calling, ringless voicemails and soundboard technology, the FCC and the courts have consistently recognized that the harm from calls using artificial and prerecorded voices “stems from the nuisance of receiving such a call,” plus the “prodding to listen to the contents of an unwanted junk call,” it said.

Consumer harm also stems from the “inability to have a genuine back-and-forth with the caller, not with whether the message automatically plays or the specific technology used to transmit the call,” said the brief. Affirming the district court’s dismissal of Howard’s complaint “could lead to a flood of video and audio spam targeting consumers,” it said.

The increase in MMS scams and unsolicited messages, combined with the rise of generative AI, deepfakes and their use in financial crimes and voter suppression, “underscores the need for strong enforcement of the restriction on artificial and prerecorded voice messages,” said the brief. The restriction on artificial and prerecorded voice messages “extends to all types of calls,” it said. Artificial or prerecorded voice messages sent via MMS “pose a real threat to phone subscribers,” it said. The 9th Circuit should correct the district court’s “erroneous interpretation of the TCPA,” it said.