Last week, the Eleventh Circuit held that a plaintiff did not have Article III standing to assert claims under the Telephone Consumer Protection Act based on his alleged receipt of a single unsolicited text message. In addition to defeating the plaintiff’s individual claims, the decision has complicated his path to asserting TCPA claims for a putative class and will have ramifications for other TCPA class litigation. A copy of the opinion can be found here.
In reversing the lower court’s decision, the Eleventh Circuit relied on its own precedent, the legislative history of the TCPA, and the U.S. Supreme Court’s Spokeo decision. The Court held that simply receiving a text message, without any additional particularized harm, cannot provide the basis for bringing a lawsuit in federal court. Specifically, the opinion likened “[t]he chirp, buzz, or blink of a cell phone receiving a single text message” to “walking down a busy sidewalk and having a flyer briefly [waved] in one’s face . . . annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.” The Court explained that plaintiff John Salcedo had not alleged that his domestic peace was disturbed by the ringing of his phone or that his cell phone was searched, dispossessed, or seized.
The Eleventh Circuit distinguished this case from prior precedent where tangible costs were associated with TCPA violations, noting that the complaint contained no allegations that the text message at issue cost Salcedo any money. The Court also noted that a cell phone user can continue to use all of the device’s functions, including receiving other messages, while it receives a text message. The Court therefore disregarded Salcedo’s conclusory allegation that he and his phone were temporarily unavailable as a result of receiving the text message. The Court explained that allegations of wasted time could constitute concrete harm, but that such harm would require an interruption of “more than a few seconds.”
The Court also looked to legislative history in making its decision, first noting that text messaging in its current form did not exist when the TCPA was enacted in 1991. Nonetheless, the Court explained that the receipt of a single text message is “qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.” For example, consumers often have their ringers silenced and they take their phones in and out of the home; thus, there is less potential for nuisance and home intrusion. The Court explained that Congress is “best positioned to assess and articulate new harms from emerging technologies” and that “congressional silence is a poor basis for extending federal jurisdiction to new types of harm.” The Court also distinguished the type of harm alleged in traditional torts for invasion of privacy or trespass, noting that those claims require the invasion of an interest in real property. Likewise, the Court noted that while the allegations bore a passing resemblance to claims for conversion and trespass to chattel, they differed so significantly that such historical claims could not support the existence of concrete harm in this case.
The Court noted that its sister circuit came to an opposite conclusion in this same context. Specifically, In Van Patten, the Ninth Circuit held that the receipt of two unsolicited text messages constituted a concrete injury sufficient to meet the Spokeo test. However, the panel found the Van Patten decision unpersuasive, noting that it “stopped short” of examining whether isolated text messages not received at home spur the harm envisioned by Congress and instead embraced the “broad overgeneralization” that lawmakers had identified “unsolicited contact” as a concrete harm.
This decision may help ease the growing swell of TCPA text message class actions by throwing up a roadblock to class certification. Specifically, the opinion supports an argument that proving concrete harm across a putative text message class would be impossible absent individualized inquiries into the context of when and how a text message was received. It also further supports the position that consumers can only recover damages associated with specific text messages that cause actual disruption or harm, which creates yet another individualized issue and could greatly reduce the potential available damages in individual TCPA suits.
The circuit split—and other ongoing litigation interpreting Spokeo—makes it more likely that the U.S. Supreme Court will decide to revisit and flesh out the concreteness requirement in more detail. In the meantime, however, more TCPA cases likely will be filed in the Ninth Circuit and there are sure to be continued disputes over the proper interpretation of Spokeo in the TCPA class action context.