According to the federal district court in Arizona, a Multimedia Messaging Service (“MMS”)—a text message with visual and, if you choose, audio content—does not violate the prerecorded voice provisions of the TCPA1 if the text messages does not automatically play any audio. This is an important win for text marketers in this emerging area of attack. The TCPA Plaintiff’s bar had to shift their traditional attack on text message marketing—via the ATDS theory— post Facebook. There, the Supreme Court largely killed that theory.
The Ninth Circuit recently held that text messages do not contain a prerecorded voice.
We recently discussed a decision from the Ninth Circuit holding that text messages don’t contain a prerecorded voice.2 The Ninth Circuit was the first federal appellate court to weigh in on that issue. Per that decision, a text message does not violate the “prerecorded calls to residential lines” provision of the TCPA.3 Also, a text message does not violate the “prerecorded calls to cellular telephones” provision of the TCPA. 4 But in certain courts a text message can still violate that provision if it is sent using an ATDS to a mobile phone without proper consent. Importantly, that decision is only binding precedent within the Ninth Circuit.
The Ninth Circuit did leave the door open to the possibility that an MMS with audio content could still violate those TCPA provisions. That was because, significantly, an MMS could include audio.
The Federal District Court of Arizona holds that MMS text messages don’t automatically violate the TCPA.
The federal district court in Arizona, however, just closed that door in two cases. The cases are Howard v. Republican Nat’l Comm.6 and Crawford v. NRA of Am.7 In both cases the district court held that MMS do not violate those provisions of the TCPA, as long as the audio does not play automatically.
The Plaintiff’s Allegations
In both cases, the plaintiffs alleged that they received an MMS text from the defendants that included a video with a prerecorded audio component. The plaintiffs alleged that the video automatically downloaded to their phones. But neither plaintiff alleged that the audio immediately started playing or that an audio track began reading the text message aloud.
The Court’s Holding
It was significant to the court that the audio in the text messages did not start playing automatically. Therefore, the court found that the text “messages provided a conscious choice of whether to engage with the audible component.” This was crucial to the court’s decision because it believed that being provided with such a choice “is different from what the TCPA intended[.]” Therefore, the court held in both cases that an MMS message that does not automatically play any audio, does not violate 47 U.S.C. § 227(b)(1)(B). Such a text also does not automatically violate 47 U.S.C. § 227(b)(1)(A)(iii). It can still violate that provision if it was sent with an ATDS, without proper consent.
Points to remember
Keep in mind that these decisions came from a federal district court. Therefore, they are not the definitive decisions on this issue. Thus, those in the telemarketing industry should remain cautious when sending text messages via MMS. That said, there is reason for optimism. These first decisions on this issue support a sensible application of the TCPA to modern MMS marketing.
There are two other important caveats to keep in mind when sending MMS:
- MMS can still violate 47 U.S.C. § 227(b)(1)(A)(iii) if an ATDS was used to send the text message and there was no proper consent; and
- MMS can still possibly violate 47 U.S.C. § 227(c) if the text message was a solicitation, sent to a number registered on the National Do Not Call Registry, and not sent with proper consent or pursuant to an established business relationship, at least in those courts that hold that cell phones are “residential” telephone lines, notwithstanding Congress’s and the FCC’s clear delineation of those separate objects in the TCPA.
Topics
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