A&B Abstract:
Receiving a single, unsolicited text message is not enough to establish Article III standing to sue under the Telephone Consumer Protection Act (“TCPA”), the Eleventh Circuit held in Salcedo v. Hanna. The TCPA is a federal statute that makes it illegal to send certain types of telemarketing messages to phones and fax machines. This decision marks a departure from the Ninth Circuit, creating a circuit split.
Salcedo v. Hanna
On August 28, 2019, the Eleventh Circuit issued an opinion in Salcedo v. Hanna, No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), addressing the issue of Article III standing under the TCPA.
Plaintiff John Salcedo sued attorney Alex Hanna and his law firm after he received one text from them offering a discount on services. Salcedo brought a class action in the Southern District of Florida, seeking statutory damages under the TCPA. The district court denied Hanna’s motion to dismiss and certified the issue of standing for interlocutory appeal. The Eleventh Circuit, in a three-judge panel decision, held that Salcedo did not suffer a concrete injury, and therefore he did not have standing under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
Salcedo alleged that he had to waste time addressing the text, and while doing so, his phone was unavailable for other actions. He also alleged the text invaded his privacy and the use of his phone. The Court distinguished Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), an Eleventh Circuit case in which the Court found standing for a plaintiff who received a junk fax. In Palm Beach, the plaintiff was unable to use the fax machine during the time it was receiving the fax, and the fax also involved tangible costs such as paper, ink, and toner.
Additionally, the “intangible costs” Salcedo alleged were distinguishable from those in Palm Beach. While the Court noted that at oral argument Salcedo compared the time he wasted on the text to the wasted fax machine time, his complaint only alleged time wasted in a general manner. Thus, the Court held, “[i]n the absence of a specific time allegation” the case was not the same as Palm Beach.
Finding no outcome-determinative precedent, the Court turned to the framework of Spokeo to determine whether Salcedo alleged a concrete injury in fact, looking to the judgment of Congress and history. The Court viewed Congress’s legislative findings on telemarketing as suggesting that receiving a single text was “qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA,” because the concerns for “privacy within the sanctity of the home” do not apply to texts in the same way. Cell phones can be silenced and are regularly taken outside of the home, the Court noted.
The Court explained further
Salcedo has not alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone. Nor has he alleged that his cell phone was searched, dispossessed, or seized for any length of time. Salcedo’s allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms. 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. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.
Lastly, the Court clarified that it was “not attempting to measure how small or large Salcedo’s alleged injury is.” Its assessment was “qualitative, not quantitative,” and Salcedo fell short. While time wasted can state a concrete harm, Salcedo’s single text was insufficient.
Takeaways
This decision is likely to pose a hurdle for plaintiffs seeking to certify a class based on alleged TCPA violations in the form of text messages. The Eleventh Circuit made clear that it does not view text messages in the same light as calls. The need to specify in greater detail harm sufficient to establish Article III standing may require facts not unique to all class members.
Additionally, while in this case one text was not enough to establish standing, the opinion does not establish what is enough to cross that line. As noted in the concurrence, the Court’s decision is narrow, and “leaves unaddressed whether a plaintiff who alleged that he had received multiple unwanted and unsolicited text messages may have standing to sue under the TCPA.”
The Eleventh Circuit’s decision also marks a departure from the Ninth Circuit, which held in 2017 that two unsolicited texts amounted to a concrete injury. See Van Patten v. Vertical Fitness Grp., Ltd. Liab. Co., 847 F.3d 1037 (9th Cir. 2017). The Second Circuit has also found that the receipt of unsolicited texts alone, without other injury, is sufficient to show injury-in-fact. Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 95 (2d Cir. 2019).