TCPA litigants are required to meet a higher burden in order to meet standing in the wake of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). They are required to demonstrate an injury-in-fact that is concrete and particularized, and not merely a conclusory allegation. This affords TCPA defendants greater protection from frivolous or de minimisclaims.

In Zemel v. CSC Holdings LLC, Civ. No. 16-4064-BRM-DEA, 2017 WL 1503995 (D.N.J. April 26, 2017), the Court dismissed a plaintiff’s TCPA claim based upon receiving three allegedly unsolicited text messages from a phone number allegedly belonging to the defendant. The plaintiff responded twice, asking for “help” and then for the messages to “stop.” The Court summarily rejected the plaintiff’s three arguments in support of standing.

First, the Court rejected the plaintiff’s argument that the messages caused him to incur charges on his previously paid telephone plan, and held that a plaintiff must plead that they incurred some additional charges due to the unsolicited messages. A similar claim was rejected in Susinno v. Work Out World, Inc., No. 15-cv-5881 (PGS)(TJB), 2016 U.S. Dist. LEXIS 113664 (D.N.J. Aug. 1, 2016) (noting that most cellphone plans allow for an unlimited amount of calls), cited by the Court.

The Court also rejected the plaintiff’s argument that the three messages were a nuisance, or an invasion of privacy, sufficient to constitute an injury-in-fact. This resembled the Court’s reasoning in Romero v. Dep't Stores Nat'l Bank, 199 F. Supp. 3d 1256, 1264 (S.D. Cal. 2016) (holding that plaintiff could not meet standing after receiving 290 calls because she could not prove an injury-in-fact beyond the calls themselves).

Last, the Court held that the TCPA’s purpose was to deal with “common nuisance-telemarketing” and “to control residential telemarketing practices.” Three text messages, two of which the plaintiff responded to, did not reach to the level of telemarketing. The Court distinguished Leyse v. Bank of Am. Nat’l Ass’n, No. 11-7128, 2016 WL 5928683, at *4 (D.N.J. Oct. 11, 2016) (finding that a single call to the plaintiff’s residential phone line violated the TCPA) on the basis that a call to a residence invoked a greater privacy interest and fell within the zone of protection of the TCPA.