Arizona Federal District Court Holds MMS’s Are Not Prerecorded Messages Under the TCPA Unless They Play Automatically

A district court in the District of Arizona granted a motion to dismiss in a Telephone Consumer Protection Act (TCPA) case on the basis that multimedia messaging service (MMS) texts do not constitute prerecorded messages unless the audible component plays automatically upon opening.

In Howard v. Republican National Committee, the plaintiff alleged that defendant sent an MMS text to his cell phone that included a “video file that was automatically downloaded to [the plaintiff’s] phone.” The video file included an audio recording encouraging people to vote in the upcoming election. The plaintiff alleged that he never gave the defendant consent to be contacted by telephone.

The plaintiff filed suit pursuant to 47 U.S.C. §§ 227(b)(1)(A)(iii) (for leaving a message on his cell phone) and (b)(1)(B) (for leaving the message on his cell phone which serves as his residential phone). The defendant filed a motion to dismiss asserting, among other things, that the text message at issue is not a prerecorded voice under the TCPA.