RNC: 9th Circuit Should Affirm Dismissal of ‘Untenable’ TCPA Case

Plaintiff-appellant Jacob Howard’s case against the Republican National Committee “hinges on a legal theory that is as novel as it is untenable,” said the RNC’s answering brief Saturday (docket 23-3826) in the 9th U.S. Circuit Appeals Court. Howard alleges that a text message containing a video constitutes an artificial or prerecorded voice call under the Telephone Consumer Protection Act, said the RNC. But the district court recognized the “absurdity” of Howard’s claims “and rightly dismissed them,” it said. U.S. District Judge Steven Logan for Arizona in Phoenix held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing (see 2402080021). The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order. Though the TCPA protects Americans’ right to privacy, it doesn’t “impose liability for every telephone communication that a recipient dislikes,” said the RNC’s answering brief. “Nor does the TCPA permit curtailment of political speech -- even when that speech comes in the form of a text message,” it said. The TCPA also exempts political communications and certain communications from nonprofit organizations from its prohibitions, it said. Both exemptions “plainly apply here,” it said. Howard’s complaint “pleaded him out of his TCPA claim,” it said. The district court “thus properly dismissed his case,” it said. On appeal, Howard “now challenges every facet of this decision by raising any fleeting legal theory he can conjure,” it said. These theories “are uniformly without merit,” it said. The 9th Circuit should affirm, it said.