In a pair of cases from the U.S. Court of Appeals, Eleventh Circuit, and a federal district court in California, defendants were successful in getting Telephone Consumer Protection Act (TCPA) suits dismissed for lack of standing under Article III of the U.S. Constitution.
The Eleventh Circuit case is Salcedo v. Hanna. At 9:56 a.m. on Aug. 12, 2016, John Salcedo, a former client of Florida attorney Alex Hanna and his law firm, received a text message from Hanna offering a 10 percent discount on his services.
Salcedo filed a putative TCPA class action in the U.S. District Court for the Southern District of Florida, and Hanna responded with a motion to dismiss for lack of standing pursuant to Spokeo v. Robins. The district court denied the motion but the Eleventh Circuit reversed on appeal.
Salcedo claimed that receipt of the one text message “caused [him] to waste his time answering or otherwise addressing the message. While doing so, both plaintiff and his cellphone were unavailable for otherwise legitimate pursuits.” The message also resulted in an invasion of his privacy and his right to enjoy the “full utility” of his cellular device, he told the panel.
The Eleventh Circuit was not persuaded. “These allegations are qualitatively different from those in our circuit precedent that have been successful in establishing standing to sue over a single violation of the TCPA,” the panel wrote. The court distinguished its 2015 decision in Palm Beach Golf Center v. John G. Sarris, where the court found standing for a plaintiff who received a single junk fax based on actual harms such as the unavailability of his fax machine for legitimate business while the junk fax was processed.
“To the extent we have relied on tangible costs such as the consumption of paper and ink or toner to establish injury in fact, Salcedo cannot so rely, since receiving a text message uses no paper, ink or toner,” the panel wrote. “His complaint alleges generally that some text messages cause recipients to incur costs to their service providers, but he has not alleged specifically that Hanna’s text cost him any money.”
The panel acknowledged that the plaintiff’s allegations of intangible costs bore some facial similarities to those in Palm Beach Golf, but Salcedo only asserted time wasted generally and not a specific time allegation.
“A fax message consumes the receiving device entirely, while a text message consumes the receiving device not at all,” the panel said. “A cellphone user can continue to use all of the device’s functions, including receiving other messages, while it is receiving a text message.”
Nor could Salcedo claim lost opportunity, as a fax machine’s inability to receive another message while processing a junk fax has no analogy with cellphones and text messaging, the panel added.
The Eleventh Circuit also looked to what Congress has said in the TCPA’s provisions and findings about harms from telemarketing via text message and found “nothing.” Despite congressional statements about the problems of telemarketing, lawmakers have yet to amend the statute to add text messages to the categories of restricted telemarketing, and legislative findings about telemarketing “suggest that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA.” For example, the concern for “privacy within the sanctity of the home” does not necessarily apply to text messaging, the court said. “[A] single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does,” the court wrote.
The panel noted its disagreement with the opposite conclusion reached by the U.S. Court of Appeals, Ninth Circuit, in Van Patten v. Vertical Fitness Group. In that case, the Ninth Circuit wrote that Congress “identified unsolicited contact as a concrete harm,” a “broad overgeneralization of the judgment of Congress,” the Eleventh Circuit said.
“In sum, we find that history and the judgment of Congress do not support finding concrete injury in Salcedo’s allegations,” the panel wrote. “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 cellphone 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 cellphone receiving a single text is more akin to walking down a busy sidewalk and having a flyer briefly [waved] in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. All told, we conclude that Salcedo’s allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.”
Across the country in the Southern District of California, another defendant achieved a similar victory in Shuckett v. DialAmerica Marketing, Inc. There, Ariel Shuckett alleged that she received approximately 40 prerecorded telemarketing calls from DialAmerica Marketing that were made on behalf of American Standard. However, DialAmerica informed Shuckett that all the calls referenced in the lawsuit were made by a different American Standard contractor (ProspectsDM), except for one.
The sole call made by DialAmerica went unanswered, although the parties disputed whether Shuckett noticed it at the time it came in.
Shuckett settled her claims against ProspectsDM and pursued her action against DialAmerica. The defendant argued that Shuckett lacked Article III standing to satisfy the requirements of Spokeo based on the single, unanswered telemarketing call.
“Although it’s a close call, the court agrees,” Chief U.S. District Court Judge Larry Alan Burns decided.
The court had previously considered the issue of standing in an earlier DialAmerica motion to dismiss and determined in that analysis that the plaintiff had standing to sue. Based on that ruling, Shuckett argued in opposition to the defendant’s summary judgment motion that the issue was settled and that the defendant could not relitigate the question.
Judge Burns disagreed. “While the court shares Shuckett’s concerns about relitigating already-decided issues, standing is unique in that courts have a continuing, independent obligation to determine whether subject matter jurisdiction exists at all times,” the court wrote. “The court must consider challenges to Shuckett’s standing raised at any stage of litigation, even if the issue has been litigated previously.”
Considering the question for a second time, Judge Burns said that the initial finding was based on the premise that Shuckett was aware of the missed call at the time it occurred.
“Whether she was aware of the call or not is important because, as other courts in this circuit have noted, an unnoticed call may ‘violate the TCPA but not cause any concrete injury,’” the court said. “Signaling the centrality of this question to whether Shuckett has standing, the court noted in its previous order that ‘[h]ad the call [to Shuckett] gone entirely unnoticed, perhaps this would be a different case.’”
Shuckett’s billing statement from her wireless carrier showed that her phone registered no “talk activity” on Oct. 10, 2017, at 12:02 p.m., the time at which DialAmerica called her. At a minimum, this demonstrates the call went unanswered, the court said.
“More importantly, Shuckett testified at her deposition that she had no present recollection of her phone ringing on October 10, 2017,” the court wrote. “It’s altogether unsurprising that someone would be unable to recall an isolated phone call more than one year earlier, but this testimony is notable because Shuckett lacks any other evidence demonstrating that she was aware of the call at the time.”
Shuckett was able to produce numerous screenshots showing missed calls from ProspectsDM but submitted none showing a missed call from DialAmerica. “While not dispositive, this failure to preserve evidence supports an inference that the evidence would have been unfavorable to her,” Judge Burns wrote.
Shuckett also failed to submit any affirmative evidence demonstrating that she suffered a concrete injury as a result of DialAmerica’s single call. Instead, her evidence consisted of the phone record and her testimony that she was working as a doctor in a clinic on the day the call was placed. While she did not recall receiving a phone call on that date, she would have been aware of it because she keeps her phone on at all times to respond to emergencies, she testified. If she is with a patient, she silences the phone or hands it to a nurse to respond.
“While a [single] missed call may be sufficient to confer standing if the plaintiff can demonstrate that he or she was aware of the call and it caused nuisance, it is not sufficient for a plaintiff to allege simply that he or she would have been aware of the call given what they were doing on that day,” the court said. “Shuckett’s evidence here only supports a finding of conjectural or hypothetical injury, and that does not give the court subject matter jurisdiction.”
Without a more detailed account of the events, the court could not know whether the phone was in Shuckett’s possession or a nurse’s possession when the call came in or if the call even reached Shuckett’s phone.
“The point here is not to downplay the harm associated with robodialing or to nitpick the details of Shuckett’s story,” the court wrote. “The point is simply that Shuckett bears the burden of demonstrating that she suffered a concrete, non-conjectural injury. Without something more definitive than what she has provided, she cannot meet that burden.”
Judge Burns granted the defendant’s motion for summary judgment.
To read the opinion in Salcedo v. Hanna, click here.
To read the order in Shuckett v. DialAmerica Marketing, Inc., click here.
Why it matters: Both cases involved a single form of communication from the defendants to the plaintiffs and represent a rare win for defendants bringing an Article III standing challenge in a TCPA case. The Eleventh Circuit—creating a circuit split with contrary authority in the Ninth Circuit—found that a lone text message did not rise to the same level of annoyance or invasion of privacy that Congress intended to prevent with the TCPA, finding the text “qualitatively different” than even a single fax. The California federal court similarly found that a single, unanswered phone call was insufficient to establish an injury-in-fact to support the plaintiff’s lawsuit, and thus stands in stark contrast to other district-level decisions from the Ninth Circuit. The question of standing for a single communication looks to remain in the headlines, as the plaintiff in Salcedo has already filed a motion seeking en banc review. Moreover, the circuit split created by that case could very well end up as part of a petition for certiorari, which would give the Supreme Court a chance to revisit—and perhaps refine—its prior holding in the watershed Spokeo v. Robbins case.