Reply Brief Urges 9th Circuit to Reverse Dismissal of TCPA Case vs. RNC

The Republican National Committee relies on its “tortured reading” of the 9th U.S. Circuit Appeals Court’s 2023 opinion in Trim v. Reward Zone to “rewrite” the Telephone Consumer Protection Act and “overturn” 15 years of 9th Circuit precedent, said plaintiff-appellant Jacob Howard’s reply brief Friday (docket 23-3826) in support of his appeal to reverse the dismissal of his TCPA case (see 2402080021).

Based on the 9th Circuit’s decision in Trim, the RNC asks the court to rewrite its longstanding three-part test for a TCPA violation, when a call to a cellphone uses an artificial or prerecorded voice and does so without consent, said the reply brief. In Trim, the 9th Circuit held that the text messages Reward Zone sent to Lucine Trim didn’t use prerecorded voices under the TCPA because they didn’t include audible components.

The facts of this case are identical to what Trim described as satisfying the second element of the three-part test, said the reply brief. The RNC initiated a call to Howard that included a video file that was automatically downloaded to Howard’s phone and contained an artificial or prerecorded voice, it said. Because Howard alleged all three elements of the three-part test, the 9th Circuit must reverse the district court ruling, it said.

The RNC violated the TCPA when it called Howard using an artificial or prerecorded voice, said the reply brief. Its brief creates a “fictional statute and beats it to death,” the reply said. The RNC argues that only voice calls can violate the TCPA because an MMS text message can never have a voice, it said.

That “rewrite” of the TCPA “not only introduces redundancy and circularity to the statute but collapses the first two elements into a single element that can never be met by a text message,” said the reply brief. The RNC’s interpretation “means that a text message is simultaneously a call and not a call,” it said.