Ninth Circuit Limits Prerecorded-Voice Claims for Video Texts

A video attached to a text doesn’t necessarily make the message a prerecorded-voice call. In the Ninth Circuit’s January 2026 decision discussed below, the recipient had to tap the video before its recorded voice played. That sequence supplied a defense to the particular voice-based claim. For businesses using video messages, the way the recipient encounters the audio can matter as much as the file’s contents.

What did the court decide about the attached video?

In Howard v. Republican National Committee, No. 23-3826, decided January 13, 2026, the Ninth Circuit affirmed dismissal of the voice-based claim. The majority explained: “Because the text message at issue here was made and initiated without the playing of a prerecorded voice, it did not violate these provisions.”

The opinion’s description of the message distinguishes the arrival of the text and video from playback of the recorded sound. The recipient’s affirmative act of playing the video mattered. The panel was divided, and the majority’s conclusion shouldn’t be restated as a general agreement that all video-based marketing is outside the TCPA.

I would start a defense review by reproducing the actual delivery experience, which can differ depending on whether the text includes a file attachment or a link and whether any audio plays when the message arrives. Calling all three a video text conceals the very distinction the opinion examines.

Why does the beginning of the communication matter?

The TCPA’s cellphone restriction addresses calls using an automatic telephone dialing system or an artificial or prerecorded voice, subject to statutory exceptions. 47 U.S.C. § 227(b)(1)(A) supplies those separate grounds. A prerecorded voice means audio recorded before delivery, as opposed to someone speaking live during the call, and the presence of that audio raises a question different from whether the equipment meets the statute’s definition of an autodialer.

The Howard majority described the relevant language as reaching “the use of prerecorded voices in the manner in which a call is begun.” That reasoning focuses attention on how the communication starts. It doesn’t suggest that a recorded voice becomes a live voice when a recipient presses a button. The question is the relationship between the voice and the initiation of the call.

This is why I’d want the original delivery logs and a reliable account of the receiving device’s behavior. An automatic download isn’t necessarily automatic playback, and a screenshot that shows a thumbnail without explaining whether sound played on receipt may leave counsel without the fact needed to assess this particular defense. Conversely, a sender’s description of its intended settings may not establish how the message actually arrived.

Keep the technical facts. A business considering this defense should retain the evidence needed to explain how a message arrived and when its audio played, even if everyone on the marketing team believes that the platform always requires recipients to press a button before hearing the recording. Where the campaign uses multiple delivery methods, counsel should avoid assuming that a result for one message format resolves the others.

Which other claims need a separate analysis?

A defense to a prerecorded-voice theory doesn’t dispose of an independently pleaded autodialer theory. An automatic telephone dialing system is a statutory category with its own requirements, including the number-generator language in § 227(a)(1). Software’s ability to send many messages alone doesn’t answer that definition. The equipment and its relevant use need their own review, including the records of number collection and platform selection, with enough detail to connect each disputed number to the challenged campaign.

Advertising and telemarketing also raise questions beyond the presence of a voice. The current FCC regulation addresses consent and do-not-call obligations through distinct provisions. The National Do Not Call Registry is the federal list through which subscribers request limits on telemarketing calls. Whether a particular claim fits a particular provision must be assessed on its own facts.

I wouldn’t change a company’s consent or opt-out practices solely because its messages contain video. That would give a decision about one liability theory more work than it can do. State-law allegations also require a separate examination because this opinion doesn’t decide every rule that may apply to a campaign.

The practical insight is to keep the transmission record and the creative content together. When a marketing team archives the video but the vendor deletes the only evidence of delivery settings, the company can retain the message but lose the evidence explaining why the voice-based claim fails.

How can a company preserve the playback evidence?

Don’t send a new test message and assume it establishes what happened in the challenged campaign. The receiving device may have changed, and the software or delivery settings may be different from those used for the messages the claimant actually received, limiting what a later demonstration can establish. I would preserve contemporaneous records first and have counsel evaluate whether a later demonstration is useful and what its limits are.

1. Retain the original messages, video files, call and text logs, platform settings, and consent records for the disputed numbers. Apply a litigation hold when a claim arrives.
2. Gather dated opt-out records and the company’s internal do-not-call history, including any instructions received outside the texting platform.
3. Locate National Do Not Call Registry scrub evidence and identify the version dates used for the campaign.
4. Save vendor agreements and campaign scripts, along with every recorded or AI-voice file. Preserve information showing whether audio required a tap to play.
5. Speak with counsel before responding to the demand, communicating with the claimant, or offering a resolution.

Responding to a video-message TCPA demand

If your business is accused of making prerecorded-voice calls through video messages, the delivery sequence should be part of the initial case review.

Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving video texts and prerecorded messages. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

Howard v. Republican National Committee, No. 23-3826 (9th Cir. Jan. 13, 2026); 47 U.S.C. § 227; 47 C.F.R. § 64.1200.

This post is general information about the Telephone Consumer Protection Act and related laws as of October 14, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.