Even though a plaintiff was not charged extra for receiving allegedly unwanted text messages, he still suffered sufficient injury to bring suit under the Telephone Consumer Protection Act, a federal court in California recently ruled.
Neil Smith brought a class action against Microsoft after he allegedly received a text message promoting the defendant’s Xbox.
Although some members of the putative class reportedly suffered actual damages by having to pay their respective wireless carriers a fee for the receipt of the unwanted text messages, Smith did not state he suffered such damages in the complaint.
Microsoft argued that because Smith failed to establish a cognizable injury, he could not state a claim under the TCPA.
But U.S. District Court Judge Janis L. Sammartino disagreed.
“The TCPA, by its unambiguous terms, does not limit protection to instances in which a plaintiff is charged individually, or even incrementally, for each text message,” she wrote, relying upon both the “legislative history and purpose” of the Act.
Judge Sammartino looked to court decisions that have interpreted standing under the TCPA in different contexts and other federal statutes aimed at curbing invasions of individual privacy. She determined that “the statute is intended to grant relief [without] relation to monetary harm.”
“Even absent any economic harm,” she wrote, the plaintiff “has established a particularized injury in satisfaction of Article III premised on the invasion of his privacy.”
To read the opinion in Smith v. Microsoft, click here.
Why it matters: Judge Sammartino noted that only a handful of courts have faced a similar issue of statutory interpretation but reached similar decisions. Marketers facing the potential of up to $1,500 in damages per violation of the TCPA should use care to ensure they have prior, express consent to send text messages.