By: Jeffrey Backman, Esq. and Roy Taub, Esq.
On January 13, 2026, the Ninth Circuit issued a decision in Howard v. Republican National Committee concluding that the TCPA’s restrictions on “artificial or prerecorded voices” apply only when the call begins with a prerecorded message. This appears to be the first federal appellate decision to draw this line so clearly. The court reasoned that Congress intended to prevent the nuisance of answering a call and immediately hearing a robot’s voice, not to ban all prerecorded content that may be heard during a call.
The case involved a text message sent during the 2020 election that included a link to a video featuring a prerecorded message. The plaintiff argued this violated the TCPA’s prohibition on calls using prerecorded voices. The Ninth Circuit disagreed, emphasizing that the statute’s language, “make” or “initiate” a call using a prerecorded voice, means the prerecorded content must be part of the call’s initiation. According to the court:
“…if the caller is a live person and after the call is begun with the recipient, the caller then asks the recipient if he or she is willing to listen to a prerecorded message or is willing to complete an automated survey, there is no sense in which that “use” of an automated or prerecorded voice implicates the same privacy interest. In the language of the statute, such a call was not “ma[d]e” or “initiate[d]” by use of an automated or prerecorded voice, and such a call neither falls within the statute’s text nor implicates its declared purpose.”
“For the foregoing reasons, we conclude that the relevant language in § 227(b)(1)(A)(iii) and § 227(b)(1)(B) only reaches the use of prerecorded voices in the manner in which a call is begun. Because the text message at issue here was made and initiated without the playing of a prerecorded voice, it did not violate these provisions.”
In other words, if the call starts with a live person, and later plays a recording, or if a text includes a video that the recipient must choose to play, the Ninth Circuit says it does not violate the TCPA.
The decision also avoids absurd results, like banning on-hold messages or music with vocals. On this point, the majority disagreed with the dissent, stating: “The dissent’s broader reading of § 227(b)(1)(A)(iii) and § 227(b)(1)(B) would lead to anomalous, if not absurd, results. For example, if these provisions were construed (as the dissent would have it) to reach any use of an automated or prerecorded voice during a call (as opposed to use in making or initiating the call), that would potentially prohibit the common practice of on-hold messaging, in which prerecorded informational messages are played for individuals while they are on hold. In such a case, the representative has not “ma[d]e” or “initiate[d]” a call “using” a prerecorded voice. 47 U.S.C. §§ 227(b)(1)(A)(iii), (b)(1)(B). Moreover, the dissent’s flawed reading of the provisions as prohibiting any “use” of prerecorded voices during a call would prohibit playing recorded music while on hold, but only if the music has vocals. The notion that Congress sought to draw any such line in these provisions is absurd.”
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