On June 30, the Ninth Circuit Court of Appeals held that the plaintiff’s claims that she received five text messages to a cell number that she had placed on the National Do-Not-Call Registry satisfied the demands of Article III even though the actual user of the phone was her thirteen-year-old son.
In Hall v. Smosh Dot Com, Inc., the plaintiff filed a putative class action lawsuit against defendant sketch comedy creators alleging violations of the Telephone Consumer Protection Act (TCPA) based on the alleged unsolicited telemarketing messages sent to her son’s phone. The trial court dismissed the plaintiff’s claims holding that the plaintiff failed to allege she was the “actual user” of the phone or the “actual recipient” of the five text messages at issue. The plaintiff appealed.
The sole issue on appeal was whether the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry, who is not the phone’s primary user, suffers an injury in fact when the phone receives unsolicited text messages. The Ninth Circuit reasoned that when Congress directed the Federal Communications Commission to adopt a National Do-Not-Call Registry, it intended to give residential phone subscribers the right to create a private line, free from unsolicited calls and intrusive texts. Thus, “[t]he owner and subscriber of the phone suffers a concrete, de facto injury when their right to be free from such communications is violated — even if the communications are intended for or solicited by another individual, and even if someone else is using the phone at the time the messages are transmitted.”