If you thought the biggest legal question in texting was whether “LOL” still means anything, the Ninth Circuit has politely raised the stakes. In a fresh Telephone Consumer Protection Act decision, the court reinforced a point that has been floating around TCPA law for years but recently came under renewed pressure: in the Ninth Circuit, a text message can count as a call. That sounds like a tiny wording dispute, but in TCPA land, tiny wording disputes are how million-dollar class actions are born.
The headline matters because businesses, political organizations, marketing teams, and vendors have spent the past few years trying to figure out what the TCPA actually covers after a series of major court decisions. Some rulings narrowed the law. Others revived old arguments. And then the Ninth Circuit arrived like the professor who says, “Actually, let’s go back to the text,” and reminded everyone that text messages are still very much part of the TCPA conversation.
But there is a twist, because the ruling is not a blank check for every plaintiff who receives an unwanted message. The court said texts are calls, yes, but it also drew an important line around when a text containing a video or prerecorded audio will violate the statute. So this case is not a simple win for plaintiffs or defendants. It is more like a legal mullet: broad on the front end, limited on the back end.
Why This TCPA Ruling Matters So Much
The TCPA was passed to curb intrusive communications, especially automated ones. Over time, courts and regulators treated many text messages as the functional cousin of unwanted calls because they arrive on personal devices, interrupt people, light up screens, buzz in pockets, and generally barge into a person’s day with all the charm of an uninvited salesperson at dinner.
That view became especially important as text marketing exploded. Businesses shifted from cold calls to SMS campaigns. Political groups embraced peer-to-peer and mass texting. Retailers turned discounts into daily alerts. Meanwhile, consumers did what consumers do when bombarded by messages they did not ask for: they sued.
So when a federal appellate court says texts are calls under the TCPA, it affects consent practices, class action risk, vendor contracts, do-not-contact procedures, and the basic assumption many organizations use when building outreach campaigns. It also tells lower courts in the Ninth Circuit that this is not just agency gloss or old FCC folklore. There is real appellate muscle behind the idea.
The Case Behind the Headline
What Happened
The ruling most people are talking about is Howard v. Republican National Committee. The plaintiff alleged he received a text message that included a video file containing prerecorded audio. That setup created a very modern TCPA problem: the communication arrived as a text, but the message package included multimedia content that could be played by the recipient.
The plaintiff argued that this violated the TCPA’s restrictions on calls made using an artificial or prerecorded voice. The core theory was simple enough: if a text delivers prerecorded audio to your phone, why should it be treated differently from a robocall just because the content shows up in a message thread instead of over a ringing line?
The Ninth Circuit agreed on one part of the plaintiff’s framing and rejected the other. The court said a text message can be treated as a call under the TCPA. But it still affirmed dismissal of the complaint because, in this case, the prerecorded audio was not used in the manner the statute forbids.
What the Court Actually Held
Here is the clean version. The court reaffirmed that a text message qualifies as a call under the TCPA. That is the part making headlines, and reasonably so. But the court also held that the specific message at issue did not violate the prerecorded-voice provisions because the recipient had to take an additional step to hear the audio. In other words, the prerecorded voice did not automatically begin speaking when the text arrived. The recipient had to tap and play the video.
That distinction mattered. A lot. The Ninth Circuit focused on the statutory verbs about making or initiating a call “using” an artificial or prerecorded voice. The panel reasoned that the call was initiated by the text and the silent delivery of the video file, not by the later audio playback that occurred only if the user chose to activate it.
So the court’s message to litigants was basically this: yes, a text can be a call, but not every text containing audio becomes an illegal prerecorded call. If the sound arrives only after a separate, voluntary action by the recipient, the claim gets much harder.
Why That Nuance Is So Important
This is exactly why TCPA cases can feel like law school finals disguised as smartphone complaints. The same communication can be treated broadly for one part of the statute and narrowly for another. A text may be a call. A multimedia message may contain prerecorded audio. Yet a plaintiff can still lose because the prerecorded voice was not the tool used to initiate the call.
That means companies should not read the case and say, “Great, video texts are safe now.” That would be a heroic misreading. The decision is more limited than that. It turns on how the message functioned, what the statute says, and how the user encountered the audio.
How the Ninth Circuit Reached the “Texts Are Calls” Conclusion
The Ordinary Meaning of “Call”
The court did not invent this position out of thin air. It leaned on earlier Ninth Circuit reasoning, especially Satterfield v. Simon & Schuster, which treated a text message as fitting the ordinary meaning of a call because texting is an attempt to communicate by telephone. That is a commonsense approach, and frankly, it sounds a lot more realistic than pretending a phone buzzing with a marketing text is some mystical non-call event from another dimension.
The newer Ninth Circuit opinion also made clear that this conclusion survives even in a post-Chevron world. That matters because older TCPA cases sometimes rested in part on deference to the FCC’s interpretation. The court in Howard said the same result follows even without that old deference framework. Put simply, the panel was not just saying, “The FCC once said so.” It was saying, “The text of the statute and the logic of the law support it too.”
The Privacy Interest Behind the TCPA
The Ninth Circuit also emphasized privacy. That theme runs all through TCPA law. A text message is not just a line of characters floating in the abstract. It can flash on a locked screen, trigger a sound, cause a vibration, and interrupt a person immediately. From a privacy perspective, that can look a lot like the intrusion created by an unwanted phone call.
That point is bigger than rhetoric. Courts often use privacy harm to explain why the TCPA should cover modern communications technologies even when the statute was enacted in 1991, back when mobile phones were larger, more expensive, and significantly less attached to human identity than they are today.
But a Text Is Not Automatically a “Voice” Message
Here is where the Ninth Circuit kept its balance. In an earlier case, Trim v. Reward Zone USA, the court said plain text messages with written words and a link are not “prerecorded voice” messages because voice, in this part of the statute, means audible sound. So while a text can be a call, a text is not automatically a voice communication.
That distinction helped shape the later analysis in Howard. The court acknowledged that some multimedia texts could include actual sound, but it still asked whether that sound was used to make or initiate the call in the way the statute prohibits. That is how the Ninth Circuit ended up with a result that sounds contradictory at first but actually hangs together: texts are calls, yet not all text-delivered audio creates prerecorded-voice liability.
How Duguid and McLaughlin Changed the TCPA Landscape
Duguid Narrowed the Autodialer Theory
Any serious article on texting and the TCPA has to mention Facebook v. Duguid. In that 2021 case, the Supreme Court narrowed the definition of an automatic telephone dialing system, holding that the equipment must use a random or sequential number generator. That was a major victory for many businesses because it cut back on the idea that every modern texting platform is an autodialer just because it can send messages automatically from stored lists.
After Duguid, plaintiffs did not pack up and go home. They shifted. Consent fights became more important. Do-not-call theories became more important. Prerecorded-voice theories became more creative. And litigation over what counts as a call became even more valuable because if a text is not a call, some claims may never get off the ground.
McLaughlin Reopened Old Text-vs.-Call Debates
Then came McLaughlin Chiropractic Associates v. McKesson in 2025. The Supreme Court held that district courts in enforcement proceedings are not automatically bound by FCC interpretations under the Hobbs Act. That ruling added a fresh layer of uncertainty to TCPA cases because defendants could now argue more aggressively that certain FCC positions stretch beyond the statute’s actual words.
That is one reason courts have recently been split over whether text messages count as “telephone calls” for some TCPA provisions, especially the private do-not-call right of action in Section 227(c)(5). Some courts have said no, stressing that Congress knew how to refer to text messages expressly and did not do so in that subsection. Others have continued treating texts as covered communications.
The Ninth Circuit’s modern reaffirmation that texts are calls therefore lands in a much more contested world than it would have a few years ago. The decision is important not because nobody had ever said it before, but because the issue is back on the battlefield.
What This Means for Businesses and Marketers
First, Stop Pretending Text Campaigns Are Safer Than Calls
One of the most expensive mistakes in compliance is semantic optimism. Teams sometimes assume SMS is lighter, friendlier, or less regulated because it feels casual. But under the TCPA, casual does not mean consequence-free. A text campaign can create the same sort of legal exposure as a calling campaign if consent is weak, revocation is ignored, vendor practices are sloppy, or do-not-contact rules are treated like friendly suggestions.
If your organization sends promotional texts, the better compliance mindset is simple: act as though text messaging is regulated with the same seriousness as telemarketing calls, because in many contexts it is.
Second, Multimedia Messaging Deserves Its Own Review
The Howard decision also shows that MMS or video-enabled texts should not be lumped into the same review bucket as ordinary SMS. The legal analysis changes when messages include audio, embedded video, thumbnails, auto-download features, or tap-to-play content. A campaign that looks clever to the creative team may look like a statutory headache to a judge.
That does not mean multimedia texts are forbidden. It means they deserve legal review before launch, not after someone in litigation says, “Interesting choice.”
Third, Consent Still Runs the Show
Even where the law is unsettled, consent remains the safest operational anchor. Clear records of who opted in, when they opted in, what they were told, and how they can revoke consent are still the best defense. If your company cannot prove consent cleanly, you are not really running a marketing program. You are running a future exhibit list.
Fourth, Vendors Can Create Problems Fast
Many TCPA disputes begin with a brand saying, “That wasn’t us, that was a platform, agency, affiliate, or partner.” Courts are often unimpressed. If a third party is sending outreach on your behalf, its practices can become your lawsuit. Vendor management, audit rights, indemnity language, and approval controls are not glamorous, but neither is explaining a class action to the finance department.
What This Means for Consumers
For consumers, the decision is a reminder that the law still recognizes texts as a serious source of privacy intrusion. That matters because modern spam often arrives not as a ringing robocall but as a stream of discount blasts, lead-generation pitches, political messages, and suspicious links. The format has changed. The annoyance has not.
At the same time, the ruling also shows that not every unwanted text automatically equals liability. The TCPA is technical. The details matter. Was there consent? Was an autodialer used as the Supreme Court now defines it? Was the message telemarketing? Was there prerecorded audio? Did the recipient have to click to hear it? Those questions determine whether a case is strong, weak, or dead on arrival.
Specific Examples of How the Ruling Plays Out
Example one: A retailer sends a plain promotional SMS to a customer who never opted in. The message may still trigger TCPA issues, but the plaintiff may need to navigate consent questions and, depending on the theory, the narrower autodialer rule after Duguid.
Example two: A campaign sends an MMS that includes a silent thumbnail linked to prerecorded video audio. Under the Ninth Circuit’s recent reasoning, the fact that the text is a call does not automatically mean the prerecorded-voice provisions were violated if the audio plays only after the recipient taps the file.
Example three: A company sends repeated marketing texts to a number listed on the National Do Not Call Registry. That may sound like an easy TCPA case, but after McLaughlin, courts are increasingly divided on whether the private do-not-call provision clearly covers texts in every jurisdiction.
Example four: A bank sends security alerts tied to an account after the customer enrolled in those alerts. That situation looks very different because prior consent and the non-telemarketing context can radically alter the legal analysis.
Experiences From the TCPA Texting Front Lines
If you want to understand why this topic matters in real life, spend five minutes around anyone who handles marketing compliance, class action defense, or consumer complaints. The stories are rarely dramatic at the beginning. They usually start with some version of, “We only sent texts,” said in the tone of a person who thinks that should make everyone feel better.
Then the details roll in. A retail brand thought its loyalty program sign-up language was clear, but the checkbox was buried under a coupon banner and the disclosure was about as visible as a ghost in a snowstorm. A franchise system used multiple vendors, and nobody could explain which one actually sent the messages. A political outreach campaign assumed that because the message felt like digital engagement rather than a phone call, it existed in a lighter legal universe. It did not. The phone in the consumer’s hand still buzzed, flashed, and interrupted dinner just the same.
On the consumer side, the experience is even more familiar. People do not usually parse the difference between SMS, MMS, prerecorded audio, and statutory subsections while standing in line for coffee. They just know their phone keeps lighting up with messages they did not ask for. To them, an unwanted text and an unwanted call often feel like siblings with different voices. One rings. The other vibrates. Both are annoying.
Lawyers and judges, of course, do have to parse the difference, and that is where the frustration begins. A campaign can look harmless in a conference room but invasive on a handset. A company can honestly believe a message is compliant because the platform did not use old-school random-number generation, only to discover that consent records are incomplete or revocation requests were handled with the speed of a sleepy turtle. On paper, the team was modern and efficient. In discovery, it became clear nobody owned the process from end to end.
Another recurring experience is the mismatch between marketing creativity and legal precision. Creative teams love engagement. Compliance teams love definitions. When those teams are aligned, texting programs can work well. When they are not, somebody eventually asks whether a video thumbnail, tap-to-play audio clip, or automated follow-up sequence transformed a routine campaign into a TCPA problem with expensive punctuation.
That is why the Ninth Circuit’s ruling feels so practical. It reflects how these disputes actually unfold. People no longer live on voice calls alone. Communication is layered now: text, image, link, video, sound, and a million ways to combine them. Courts are being forced to decide how an old statute applies to new habits. The experience on the ground is messy, human, and very expensive when organizations assume the law has not noticed that texting became the default language of commerce.
Conclusion
The Ninth Circuit’s latest TCPA ruling does two things at once. First, it reinforces that texts can be calls under the statute, which is a major point for compliance teams and litigants who hoped that argument had faded away. Second, it reminds everyone that liability still turns on the wording of the specific provision at issue. A text may be a call, but a prerecorded-voice claim can still fail if the audio is not what initiates the communication.
That combination makes the decision especially important. It is not a headline you should read lazily. Plaintiffs cannot treat it as a universal victory. Defendants cannot treat it as a narrow one-off. And businesses definitely should not treat texting as a legal side quest while focusing all their caution on voice calls.
The bigger lesson is that TCPA text litigation is entering a new phase. After Duguid, after McLaughlin, and now with the Ninth Circuit doubling down on text-as-call reasoning while limiting certain prerecorded-voice theories, the smart approach is not guesswork. It is disciplined consent practices, careful campaign design, and the humility to admit that if your phone strategy depends on a very clever technical distinction, a federal judge may want to read the statute before your marketing deck.
Note: This article is for informational purposes only and does not constitute legal advice.