Last year, the Eleventh Circuit held in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019) that a plaintiff did not have Article III standing to sue for a violation of the TCPA based on receipt of a single text message. The Eleventh Circuit has now extended its reasoning in Salcedo in holding that a plaintiff does not suffer concrete injury through receipt of a single ringless voice mail message. Grigorian v. FCA US LLC, No. 19-15026, 2020 WL 7238392 (11th Cir. Dec. 9, 2020).
A ringless voice mail message (RVM) is sent using technology that “drops” a pre-recorded voice message in a voice mail box without making the recipient’s phone ring. According to the court’s opinion, Plaintiff received an RVM from defendant regarding an automobile special offer. She sued defendant in a putative class action on the basis the defendant’s RVM violated the TCPA. Plaintiff argued she suffered a concrete injury because she was studying for the Florida bar exam when she received the RVM, and lost time when she had to stop studying in order to listen to the voicemail, and time afterwards “trying to figure out how her information was obtained and why she was being called.” However, the RVM did not render her phone unavailable to receive legitimate calls or messages for any period of time.
This was not the first time the Eleventh Circuit has examined standing to sue for TCPA violations. It examined the issue in different contexts, including phone calls (Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1269–70 (11th Cir. 2019)) faxes (Florence Endocrine v. Arriva Medica, 858 F.3d 1362, 1366 (11th Cir. 2017)), and text messages (Salcedo, 936 F.3d 1162). In each case, the court’s analysis considered whether the plaintiff had suffered a loss of time, and unavailability of their device. Where there was both, the court had found a concrete injury to exist. Where there was not, as in the case of the text message in Salcedo, the court had found the plaintiff had not suffered a concrete injury.
In evaluating plaintiff’s standing to sue based upon receipt of a single RVM, the court found that while plaintiff had alleged some lost time, she had not shown that the RVM rendered her device unavailable in any respect. Based upon these facts, the court concluded that the plaintiff had not met her burden to show standing because she did not establish both the loss of time, and unavailability of her device.
Given that both text messages and RVMs similarly deliver messages without causing the phone to ring or occupying the line, it seems logical that the court reached the same conclusion that the receipt of a text and RVM does not result in concrete injury necessary to establish Article III standing to sue. What will be a closer call in future cases, however, is how far the reasoning of Salcedo and Grigorian will extend in cases involving multiple messages, and whether the reasoning of those cases will be adopted outside of the Eleventh Circuit.