11th Circuit Finds Receipt Of A Single Unsolicited Text Message Fails To Confer Article III Standing Under The TCPA
In Salcedo v. Hanna, No. 17-14077 (11th Cir. Aug. 28, 2019), the 11th Circuit considered whether receipt of a single unsolicited text message was sufficient to confer Article III standing to sue for a violation of the Telephone Consumer Protection Act (“TCPA”). The court found it was not and in doing so, it rejected decisions from other U.S. circuit courts on this issue.
This putative class action arose from the plaintiff’s receipt of a single unsolicited text message on his cellular phone from his former attorney, offering a 10% discount on legal services from defendant Hanna and his firm. The defendants moved to dismiss the complaint for lack of standing. The district court denied the defendants’ motion to dismiss, finding that the plaintiff had adequate standing to assert his TCPA claim. The defendants sought an interlocutory review of the ruling. The 11th Circuit granted the defendants’ petition and considered whether “receiving a single unsolicited text message, sent in violation of a federal statute,” establishes a concrete injury in fact that confers “standing to sue in federal court.”
In examining the standing requirements set forth in Article III, the Salceda court focused on the first element of the analysis – the requirement that a plaintiff demonstrate an injury in fact. The 11th Circuit noted that this requirement “is a hard floor of Article III jurisdiction and cannot be removed by statute.” In the present case, the plaintiff’s injury was based on the allegation that he wasted time answering or otherwise addressing the text message and while doing so, “Plaintiff and his cellular phone were unavailable for otherwise legitimate pursuits.” The plaintiff also alleged that the text message “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”
In examining whether these allegations were sufficient to confer Article III standing, the 11th Circuit considered the judgment of Congress on the issue. The 11th Circuit noted that Congress has said “nothing” about the harms of such text messages and found “[t]he TCPA is completely silent on the subject of unsolicited text messages.” The 11th Circuit also noted that receipt of a single text message appeared to be “qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.” The 11th Circuit distinguished between the “proliferation of intrusive, nuisance calls” to a consumer’s home, which led to the creation of the TCPA, and cell phones that are “often taken outside the home and often have their ringers silenced,” which the 11th Circuit found “present[ed] less potential for nuisance and home intrusion.” The 11th Circuit found Congress “is ambivalent at best” on text messaging generally and “its privacy and nuisance concerns about residential telemarketing are less clearly applicable to text messaging.” The 11th Circuit also suggested that “cell phone calls may involve less of an intrusion than call to a home phone” and a “single unwelcome text message will not always involve an intrusion into the privacy of a home.”
The Salceda court also examined whether the intangible harm at issue has a “close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit.” The court found the traditional tort of intrusion upon seclusion was inapplicable to receipt of a single unsolicited text message, which is not the type of invasion of privacy that would “be highly offensive to a reasonable person.” This tort also required an intrusion upon the solitude or seclusion of another or his private affairs, and the court held that “one text message to a private cell phone is not closely related to the severe kinds of actively intermeddling intrusions that the traditional tort contemplates.” The court likewise found that the traditional torts of trespass and nuisance were inapplicable to the harm allegedly suffered by the plaintiff because the text message is not alleged “to have infringed upon Plaintiff’s real property, either directly or indirectly.” The court stated that the “chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face” and while “annoying,” it was not a basis to invoke federal court jurisdiction. The court made it clear that it was assessing the “qualitative,” not the quantitative, nature of the injury and found that a single text message is “not the kind of harm that constitutes an injury in fact.”
In reaching its decision, the 11th Circuit distinguished the 9th Circuit’s decision in Van Patten v. Vertical Fitness Group, LLC, which held that two unsolicited text messages constituted an injury in fact. The 11th Circuit found that the 9th Circuit’s rationale in Van Patten “overgeneralized” the judgment of Congress in finding that it “identified unsolicited contact as concrete harm.” The 11th Circuit also found that the 9th Circuit’s decision overly simplified the history of this type of limited harm by its statement that “[a]ctions to remedy defendants’ invasions of privacy, intrusion upon seclusion, and nuisance have long been heard by American courts, and the right of privacy is recognized by most states.” The 11th Circuit held that its examination of these types of torts “reveals significant differences in the kind of degree of harm they contemplate providing redress for.”
Finally, the 11th Circuit distinguished its own prior case law in Palm Beach Golf Center – Boca Inc. v. John G. Sarris, D.D.S., P.A., where it held that a plaintiff who received a junk fax in violation of the TCPA had standing to sue. In that case, the 11th Circuit noted that the plaintiff’s fax machine was unavailable for receiving legitimate business messages for the minute or so it took to process the fax and that it had previously relied upon the tangible costs relating to the consumption of paper, ink, or toner in establishing an injury in fact. The 11th Circuit found these potential harms did not exist with the receipt of a single text message to a plaintiff’s cellular phone.
The 11th Circuit’s decision provides yet another circuit split in this ever-growing area of the law. It also provides defense counsel with another arrow in their quiver for defenses to TCPA class actions based on text messages. Please contact Ryan DiClemente, Esq. or Colleen Fox, Esq. for more information on TCPA compliance and litigation strategies.