• by Wendy Davis , 2 hours ago

A divided federal appellate panel has refused to reinstate a lawsuit alleging that the Republican National Committee violated a robotexting law by sending an unsolicited video file to an Arizona resident's cell phone.

The 2-1 ruling, issued last week by the 9th Circuit Court of Appeals, stemmed from a lawsuit brought in June 2023 by Arizona resident Jacob Howard. He alleged in a class-action complaint that in October 2020 the Republican National Committee texted him what appeared to be a prerecorded video message from President Donald Trump's daughter Ivanka.

The complaint included a screenshot of the message, which indicated that recipients would have to press the play button in order to hear the ad.

Howard claimed the political group violated the Telephone Consumer Protection Act, which generally prohibits companies from making calls using an "artificial or prerecorded voice" to cell numbers, without consumers' consent.

U.S. District Court Judge Steven Logan in Arizona dismissed the lawsuit, ruling that the video message wasn't covered by the Telephone Consumer Protection Act because it didn't appear to play automatically.

"Plaintiff has alleged that the video automatically downloaded to his phone, but based on the screenshot in the complaint, plaintiff had to actively press play on the link to watch the video," Logan wrote. "Thus, the Court finds that the message provided a conscious choice of whether to engage with the audible component, but that this is different from what the TCPA [Telephone Consumer Protection Act] intended by 'make a call' using an 'prerecorded voice.'"

Howard then appealed to the 9th Circuit Court of Appeals, which upheld the dismissal.

Circuit Judge Daniel Collins (a Trump appointee) wrote in an opinion joined by Sidney Fitzwater (appointed by Reagan) that even though the text included a prerecorded voice message, it wasn't covered by the statute.

The judges said that while the Telephone Consumer Protection Act prohibits companies from using a prerecorded message to "make" or "initiate" a call -- the law doesn't prevent companies from sending texts that include prerecorded messages.

Instead, they wrote, the message was comparable to "a telephone call in which a live caller offers to play an artificial or prerecorded voice to the recipient."

Circuit Judge Johnnie Rawlinson (a Clinton appointee) dissented, arguing that the judges in the majority misinterpreted the statute.