TCPA Update: Ninth Circuit Clarifies Limits on Text Message Liability

By Alex Wade

March 24, 2026

The Ninth Circuit recently issued a decision worth flagging for financial institutions that use text messaging in their customer/member outreach and marketing efforts.  While the case does not change the broader TCPA landscape, it does provide helpful clarification on how courts may treat text messages that include embedded multimedia content.

In Howard v. Republican National Committee, the plaintiff alleged that he received a text message that included a video containing prerecorded audio.  He argued that this violated the TCPA’s prohibition on calls made using an artificial or prerecorded voice without prior consent.  The theory was straightforward, because the message ultimately delivered prerecorded audio, it should be treated the same as a robocall.

The Ninth Circuit did not agree.  The court acknowledged, as it has before, that text messages qualify as “calls” under the TCPA.  But it drew an important distinction when it comes to prerecorded voice claims.  Here, the audio was not automatically delivered to the recipient.  Instead, the recipient had to take an additional step, opening or playing the video, before any sound was heard.  That distinction mattered.  Because the message did not immediately transmit a prerecorded voice, the court held that it did not fall within the TCPA provision at issue and affirmed dismissal of the claim.

For financial institutions, this is a helpful, but narrow, decision.  It does not change the fact that text messaging remains squarely within the scope of the TCPA.  Consent requirements still apply, and plaintiffs will continue to challenge the use of text messages under a variety of theories, including text messages sent using an autodialer without prior express consent.  What the decision does do is limit one particular angle of attack, namely, attempts to treat any message containing audio content as a prohibited prerecorded voice call.

Notably, the court’s reasoning turned on the fact that the audio required user action.  Had the message been structured in a way that automatically played sound, the outcome may have been different.  That is an important takeaway for financial institutions working with marketing vendors or rolling out digital campaigns that include video or other multimedia elements.

It is also worth noting that this is a Ninth Circuit decision, meaning it is binding only in the Ninth Circuit, and there was a dissent.  As a result, we expect plaintiffs’ counsel to continue testing these arguments in other jurisdictions, which we will be closely monitoring.

At the end of the day, this decision is best viewed as a clarification rather than a shift.  Text messages are still regulated.  Consent under the TCPA is still the central issue, and courts will continue to focus closely on how a message is delivered, not just what it contains.

Financial institutions that are using, or considering using, text messaging as part of their customer/member engagement strategy should take this as a reminder to revisit their practices, particularly where multimedia content is involved.  Ensuring that messages are structured in a way that requires user interaction before any audio is played is a potential option that may help mitigate risk.  At the same time, maintaining clear, well-documented consent and aligning marketing practices with compliance expectations remains important.  Of course, SW&M is here to help financial institutions navigate the ever-evolving TCPA landscape.

About the Author

Alex Wade

Alex Wade is a Senior Associate Attorney at SW&M and is part of the firm’s Regulatory Compliance and Litigation Management practice groups. Using his experience in consumer defense, complex business litigation, governmental liability, insurance entity defense, and personal injury law, […]

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