Appeals Court Rules Receipt of One Text Message Not Enough to Confer Standing To Allege TCPA Violation

The Court of Appeals for the Eleventh Circuit has ruled that the receipt of one text message is not enough of a violation of the Telephone Consumer Protection Act to give someone standing to file a lawsuit under Article III of the Constitution, potentially throwing a wrench into the arguments made by plaintiffs in virtually every TCPA case.

A copy of the ruling in Salcedo v. Hanna can be accessed by clicking here.

The plaintiff received a single text message from the defendant, offering a 10% discount on the defendant’s legal services. The plaintiff subsequently filed a class-action lawsuit, alleging the text message caused the plaintiff’s phone to be “unavailable for otherwise legitimate pursuits.” The plaintiff further alleged that the message also “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.” These are fairly standard arguments made by a plaintiff when suing for a TCPA violation.

The defendant filed a motion to dismiss, which was denied, but the District Court granted the defendant, allowed the defendant to file an interlocutory appeal. Arguments were heard before the Eleventh Circuit last October.

In looking at other TCPA cases involving the issue of standing, the Eleventh Circuit noted the difference between receiving a text message, and, say, receiving a fax, which involves the consumption of paper and toner. However, the Appeals Court noted, the plaintiff did not allege was that he was charged for the text message by his telephone carrier.

“A fax message consumes the receiving device entirely, while a text message consumes the receiving device not at all,” the Appeals Court wrote. “A cell phone user can continue to use all of the device’s functions, including receiving other messages, while it is receiving a text message.”

The Appeals Court gave weight to the fact that Congress has not amended the TCPA to include references to text messages as “a poor basis for extending federal jurisdiction to new types of harm.”

“In sum, we find that history and the judgment of Congress do not support finding concrete injury in Salcedo’s allegations,” said the Appeals Court. “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 cell phone 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 cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”

As such, the Appeals Court determined that while wasted time is still a legitimate grounds for alleging a concrete injury, there is a baseline for how much time needs to be wasted for that injury to occur. Fro the ruling: “These precedents strongly suggest that concrete harm from wasted time requires, at the very least, more than a few seconds.”

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