On June 1, the Sixth Circuit Court of Appeals issued a ruling in Dickson v. Direct Energy, LP, holding that the plaintiff’s claims that he received a single ringless voicemail (RVM) for commercial purposes satisfy the demands of Article III because his alleged injury under the Telephone Consumer Protection Act (TCPA) constitutes a concrete harm.
In Dickson, the plaintiff alleged that Direct Energy delivered multiple RVMs to his cellular phone advertising its services. RVM technology allows a party to deposit voicemails directly into a recipient’s voicemail box, without having to place a traditional call to the recipient’s wireless phone. During discovery, an expert witness concluded that of the multiple RVMs the plaintiff received, only one originated from Direct Energy. The trial court held that the plaintiff’s receipt of a single RVM did not constitute concrete harm sufficient for Article III standing because: (1) the plaintiff could not recall what he was doing at the time he received the RVM, (2) the plaintiff was not charged for the RVM, (3) the RVM did not tie up the plaintiff’s phone line, and (4) the plaintiff spent a small amount of time reviewing the RVM.
On appeal, the Sixth Circuit reasoned that Direct Energy’s unsolicited RVM constituted an intrusion into the plaintiff’s private sphere, which “implicates [the plaintiff’s] common-law right to seclusion — that is, his right to be left alone from others, including by means of telephonic communications.” Moreover, the appellate court found that because the plaintiff alleged he received an unsolicited marketing call from Direct Energy and maintained that the receipt of the RVM invaded his privacy, “[h]is injury falls within the ambit of what Congress deemed to be an actional harm when it enacted the TCPA.”
In reaching its decision, the Sixth Circuit explicitly rejected the Eleventh Circuit’s reasoning in Grigorian v. FCA US LLC, discussed here, which held that a plaintiff failed to establish Article III standing based on the receipt of a single RVM because she failed to show that it “rendered her phone unavailable to receive legitimate calls or messages for any period of time.”