Are Texts with Video Clips “Prerecorded” Calls? The Ninth Circuit Says No

On January 13, 2026, the Ninth Circuit decided Howard v. Republican National Committee, 2026 U.S. App. LEXIS 787 (9th Cir. Jan. 13, 2026), a TCPA case that resolves one lingering question and raises a more unexpected one.

The predictable part: despite recent uncertainty after the Supreme Court ruling in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 145 S. Ct. 2006 (2025), the Ninth Circuit confirmed that texts are “calls” under the TCPA, consistent with a growing trend among courts to reach that conclusion based on statutory text, rather than agency guidance.
The more noteworthy holding: a text that includes a prerecorded video is not necessarily a “call using an artificial or prerecorded voice.”

Where the Case Gets Interesting: Video with Sound

The harder question was whether a text that includes a video containing prerecorded speech violates the TCPA’s prerecorded-voice restrictions. The Ninth Circuit said no, at least where the audio does not play automatically.

Focusing on the words “make” and “initiate,” the court held that the TCPA regulates how a call begins. In Howard, the text itself was silent. Although the video file downloaded automatically, the recipient had to press play to hear any sound. Because the prerecorded voice did not play as part of initiating the call, the defendant did not violate the TCPA.

The Dissent and Ongoing Risk

Judge Rawlinson dissented, arguing that the statute prohibits “any call” made using a prerecorded voice, regardless of when the audio plays. In her view, the text and embedded video were a single call, and the majority improperly narrowed the statute. That dissent is significant. Other courts may agree with it, and plaintiffs are likely to rely on it outside the Ninth Circuit.

How does this affect your texting campaigns?

• Texts should still be treated as calls.

• Embedded video may not automatically be a prerecorded call if audio plays only after the recipient clicks.

• Geography matters. This is a Ninth Circuit decision, and the dissent signals litigation risk elsewhere.

• Conservative compliance remains advisable. Because the statute is broad, we recommend avoiding prerecorded audio in text-delivered videos unless you have the right level of consent—prior express written consent for marketing texts, or prior express consent for political or informational texts.