On January 13, 2026, the Ninth Circuit Court of Appeals issued its decision in Howard v. Republican National Committee, and it settled a question that has been litigated for over a decade: text messages are “calls” under the Telephone Consumer Protection Act.
This is not a surprise to anyone who has been tracking TCPA litigation closely. Multiple district courts had reached the same conclusion. But the Ninth Circuit’s ruling is different in weight. It resolves a genuine circuit split, creates binding precedent across nine western states (including California, the single largest source of TCPA class actions in the country), and eliminates the last credible argument that SMS marketing somehow falls outside the TCPA’s reach.
If your business sends marketing text messages, this ruling confirms what plaintiffs’ attorneys have been arguing for years: full TCPA liability applies to every text you send.
The Facts of Howard v. RNC
The case arose from text messages and multimedia messages (MMS) sent by the Republican National Committee to individuals who had not consented to receive them. The messages included both standard text content and, in some instances, embedded video files that recipients would need to tap “play” to watch.
The plaintiff, Howard, brought claims under 47 U.S.C. Section 227(b)(1)(A), alleging that the texts and MMS messages constituted “calls” made using an automatic telephone dialing system (ATDS) and that the MMS messages containing videos constituted calls delivering an “artificial or prerecorded voice.”
The district court ruled in favor of the plaintiff on the text-as-call question but dismissed the prerecorded voice claim. Both sides appealed.
Texts Are Calls: The Holding
The Ninth Circuit’s analysis on this point was straightforward. The court examined the statutory definition of “call” and the TCPA’s legislative history, noting that Congress enacted the TCPA in 1991 specifically to address the growing problem of unsolicited automated communications to consumers.
The court held that the term “call” in Section 227(b)(1)(A) encompasses text messages sent to wireless telephones. The reasoning: the TCPA was designed to protect consumers from the intrusion of automated communications, and a text message is functionally identical to a phone call in terms of that intrusion. It arrives on your phone uninvited, it demands your attention, and it uses the same telephone network infrastructure.
The court also pointed to the FCC’s prior declaratory rulings, which have consistently treated text messages as calls under the TCPA since at least 2003. While the court acknowledged that FCC interpretations are not binding on Article III courts, it found them persuasive and consistent with the statutory text.
The bottom line: Under Ninth Circuit law, every unsolicited marketing text message sent using an ATDS or prerecorded/artificial voice triggers the same liability exposure as an unsolicited phone call: $500 per violation, trebled to $1,500 for willful or knowing violations under 47 U.S.C. Section 227(b)(3).
The Circuit Split Is Resolved
Before Howard, the question of whether texts qualify as calls was technically unsettled at the circuit level. Several circuits had addressed the issue tangentially, and the Third Circuit in Dominguez v. Yahoo, Inc. had implied that texts are calls, but no circuit had issued a direct, unambiguous holding.
Some defendants in TCPA SMS cases had attempted to exploit this ambiguity, arguing that Congress could not have intended the word “call” to cover text messages because SMS technology did not exist in 1991.
That argument is now dead in the Ninth Circuit. And given the Ninth Circuit’s outsized influence on TCPA litigation — California alone accounts for a disproportionate share of TCPA class actions filed nationwide — this holding will have immediate practical effects across the industry.
The Video Carve-Out: What Howard Did NOT Do
Here is where the case gets interesting for MMS marketers.
The RNC’s messages included embedded video files. Howard argued that these videos constituted an “artificial or prerecorded voice” under the TCPA, which would trigger a separate set of restrictions under Section 227(b)(1)(A).
The Ninth Circuit disagreed. The court drew a distinction between a prerecorded voice message that plays automatically when the recipient answers or opens the message, and a video file that sits inert until the recipient affirmatively presses “play.”
The court reasoned that the statutory phrase “artificial or prerecorded voice” contemplates an audio communication that is delivered to the recipient without further action on their part. A video file embedded in an MMS message does not “deliver” a voice to the recipient. It delivers a file. The recipient must take a separate, voluntary action — pressing play — to hear the audio content.
This distinction matters. It means that MMS messages containing embedded video are still “calls” under the TCPA (because the text/MMS itself is a call), but they are not “prerecorded voice” calls. The practical difference: prerecorded voice calls to cell phones require prior express consent under the TCPA, while marketing calls (including texts) require prior express written consent under the FCC’s regulations at 47 C.F.R. Section 64.1200(a)(2).
For most marketers, this distinction will not change their compliance obligations, because they already need prior express written consent for marketing texts. But for companies exploring video-based MMS campaigns, the Howard decision provides some clarity: the video itself does not add an additional layer of TCPA liability, as long as it does not auto-play.
What This Means for SMS Marketing Programs
If you are running an SMS marketing program, Howard changes nothing about your day-to-day compliance obligations — because you should have been treating texts as calls all along. But it does change the litigation calculus.
Before Howard: A defendant in a TCPA text message case in the Ninth Circuit could at least raise the “texts aren’t calls” defense, forcing plaintiffs to brief the issue and creating some settlement positioning.
After Howard: That defense is gone. Plaintiffs’ attorneys filing SMS-related TCPA cases in the Ninth Circuit can now cite binding appellate authority on the threshold question. This will accelerate case timelines, reduce defendants’ position in early-stage motions, and likely increase the volume of SMS-related TCPA filings.
For companies sending high volumes of marketing texts, the math is stark. A campaign that sends 100,000 unsolicited texts carries a theoretical exposure of $50 million at the base statutory rate, or $150 million if the violations are found to be willful. Even with a negotiated class settlement, the numbers are punishing.
What You Should Do Now
1. Audit your SMS consent records. For every number in your marketing text list, you should be able to produce documentation showing when and how that consumer provided prior express written consent, what disclosure language they agreed to, and which specific seller or sellers were identified in the consent. If you cannot produce this for any given number, stop texting it.
2. Review your ATDS exposure. The Howard ruling turns on the use of an ATDS. If your texting platform stores numbers and sends messages from a list without human intervention, plaintiffs will argue it qualifies as an ATDS under the Ninth Circuit’s interpretation. Understand how your platform works and what arguments your vendor will support.
3. Ensure your consent disclosures are text-specific. Many consent forms still use language drafted for phone calls. If your disclosure says “you consent to receive calls,” update it to explicitly cover “calls and text messages.” The FCC’s one-to-one consent rule and the TCPA’s written consent requirements apply to texts with the same force they apply to phone calls.
4. Record the consent event. The single most effective defense in any TCPA case is a complete, tamper-proof record of the moment the consumer gave consent. That means capturing the full page content (including disclosure language), the consumer’s affirmative action (checkbox click, signature), a timestamp, the consumer’s IP address, and the device and browser metadata. eConsent’s session recording and certificate generation process captures exactly this evidence at the moment of consent, creating a timestamped, immutable record that can be produced in litigation.
5. Watch for video auto-play. If you send MMS messages with video content, ensure the video does not auto-play. The Howard carve-out only protects embedded videos that require affirmative action to play. An auto-playing video in an MMS will almost certainly be treated as a prerecorded voice delivery.
The Bigger Picture
The Howard decision is part of a broader trend of courts closing loopholes and confirming the TCPA’s broad reach. Combined with the FCC’s one-to-one consent rule (currently subject to its own legal challenges), the message from regulators and courts is consistent: if you are contacting consumers electronically for marketing purposes, you need clear, documented, specific consent.
The companies that will thrive in this environment are the ones that treat consent documentation as a business-critical asset, not a compliance checkbox. Every text message you send is a potential $500 liability event. The consent record behind it is your only defense.