So the biggest new TCPA decision of 2026 so far is definitely Howard v. RNCC out of the Ninth Circuit.

In that case the court held cold call video messages sent by Republicans to potential voters did NOT violate the TCPA because the user had to click on a thumbnail to play the message.

The ruling is remarkable for a couple of big reasons I already called out– namely that it confirms text messages are “calls” in the Ninth Circuit and casts doubt on the idea that voicemails that go unplayed can trigger the TCPA– but there are three really interesting little side issues here as well.

First, footnote 3 suggest calls to a phone that are off are still “calls” under the TCPA. It reads: “The mere fact that a phone can be set to shut off notifications for text messages does not mean that text messages do not, as a class, fall within the ordinary understanding of a potentially privacy intruding “call.” A classic telephone call, which typically results in ringing of the phone, remains a “call” even if the particular user has his or her ringer turned off.”

While that may seem unobjectonable this is actually the first time any appellate court has so held and it is a little strange the ruling is in a footnote, without analysis, and without any citation to authority. Perhaps this can be viewed as dicta but it is a problematic quote for those looking to limit statutory TCPA standing.

Second, footnote 8 offers the oddest reading of express consent I have ever encountered. It provides, in part: “We recognize that an individual’s phone settings could conceivably be changed so that, upon viewing a text message containing certain video files, the file would automatically begin to play. That would not change the ultimate result here… Moreover, anyone who sets his or her phone so that it plays all incoming video files automatically has plainly given “prior express consent” to listening to the prerecorded voices on any such video files that may be received. 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)(B).”

What? Changing a setting in your phone results in express consent to ALL messages you may receive from anyone? That is absolutely nuts. While I am all about “express consent by conduct” as a concept it simply does not follow that mass consent is given any time a phone setting is changed. This almost suggests that consent is given any time a user chooses to listen to a voicemail. Could that be what this really means?

Third, the opinion-which ultimately bailed the Republican National Committee out of deep TCPA trouble– was penned by a Trump-appointed judge. While I do not suggest he wrote the opinion to protect Republicans here (the other judge to join was a Reagan appointee) its an interesting look and one that has not gone unnoticed. 

Political parties are a problem for SO MANY REASONS– among them suggestions of bias in the judicial system when political interests collide with common sense and/or established law. Maybe that was the case here–maybe it wasn’t– but this is certainly an oddball ruling in several ways and the political overtones here aren’t great.