The answer is that it may depend on where your case is filed. Some courts have said one may be enough. But, according to two recent decisions from New Jersey, one is not enough (sometimes) and neither is three, at least under the factual scenarios alleged in those cases.

In Zemel v. CSC Holdings LLC, the District of New Jersey held that three text messages allegedly sent to the plaintiff using an autodialer without his prior express consent were insufficient to establish standing under the Telephone Consumer Protection Act (TCPA). There, defendant allegedly sent plaintiff an autodialed text message indicating that his mobile number was recently added to a particular service and inviting plaintiff to “Send STOP to opt out, HELP for info.” Plaintiff initially responded “Help” and received a response directing him to visit the defendant’s website for information. Plaintiff, thereafter, texted “Stop,” and received a response asking him to identify the type of messages – service alerts or appointment alerts – that he no longer wished to receive. Plaintiff alleged that these three text messages violated the TCPA and caused him to suffer “actual harm, including aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited text messages.”

In granting the defendant’s motion to dismiss, the court concluded that these three messages, even if sent in violation of the TCPA, were insufficient by themselves to satisfy the injury-in-fact requirement for standing to sue in federal court. At the outset of its analysis, the court noted that “[t]he Third Circuit has yet to apply Spokeo [v. Robins] to a TCPA case, and has yet to decide whether a violation of the TCPA means a plaintiff automatically satisfies the injury-in-fact requirement or whether a violation in addition to a conclusory allegation of an injury satisfies the injury-in-fact requirement.” The court further observed that “[t]here is a split among other courts” on this issue.

Nonetheless, the court looked to two of its own decisions to conclude that “Spokeo requires a plaintiff to have suffered ‘an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.'” The three text messages allegedly received by plaintiff did not satisfy this test.

First, plaintiff failed to plead facts showing any harm “beyond a mere statutory violation.” While plaintiff alleged that the text messages caused him to incur certain telephone charges for which he “previously paid” and were sent to a mobile phone “for which plaintiff incurred monthly charges,” his complaint did not assert that “he incurred additional charges for the text messages.” Indeed, such allegations were “missing.”

Second, plaintiff’s claims of nuisance and invasion of privacy were also insufficient because they were nothing more than “a bare conclusory assertion.” Plaintiff “failed to demonstrate how three text messages, one which was initiated by plaintiff when he responded ‘Help’ to the initial text message, are a nuisance or an invasion of his privacy.”

Finally, the court looked to the purpose of the TCPA, and concluded that plaintiff’s claims did not further that purpose. “[T]he TCPA was not enacted to prevent the harm claimed by plaintiff, under these specific facts.” “Congress enacted the TCPA ‘to deal with an increasingly common nuisance-telemarketing’ and ‘to control residential telemarketing practices.'” The three text messages plaintiff received in “a short period of time and in just one day is not what Congress intended to prevent.” “Reading and responding to such text messages, and the time it required, could not have caused plaintiff the annoyance Congress intended to prevent,” and plaintiff’s complaint alleged no facts showing otherwise. The court therefore dismissed plaintiff’s complaint for lack of standing.

The dismissal in Zemel relied upon the District of New Jersey’s previous decision in Susinno v. Work Out World, which we blogged about last summer, and other cases. In Susinno, the District of New Jersey held that one, one-minute robocall to the plaintiff’s mobile phone and the alleged resulting “loss of some de-minimus battery power over a minute” was not the type of activity the TCPA was enacted to protect.

The takeaway from these cases is that some courts may afford greater TCPA protection for violation calls made to residential phones versus those made to cell phones. Additionally, while, to date, the majority of Spokeo challenges to TCPA complaints have not been successful, these decisions are hopefully part of a welcomed trend by at least some courts to critically analyze and dismiss cases challenging one or only a few alleged violation calls.