Spokeo Has Teeth!: Eleventh Circuit Holds Receipt Of A Single Text Message Does Not Confer Article Three Standing
The Supreme Court’s landmark decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), seemingly held so much promise for TCPAWorld. After all, how could a single phone call or text message create a real injury in fact? That should seemingly put an end to abusive class action litigation where the plaintiffs command multi-million dollar settlements despite not suffering one iota of harm. But then courts got creative, and found ways of inventing harm where none really existed.
Until now. In a landmark decision, the Eleventh Circuit just dismissed a TCPA class action for lack of standing where the named plaintiff only received a single text message. See Salcedo v. Hanna, No. 17-14077 (11th Cir. Aug. 28, 2019).
In a familiar fact pattern, the plaintiff in Salcedo allegedly received a single text message, and tried to blow it up into a significant class action. The defendant responded with a motion to dismiss for lack of Article III standing. The district court denied the motion but – seeing the importance of it – certified the issue for interlocutory appeal. The Eleventh Circuit accepted The appeal and reversed, finding that the plaintiff lacked standing.
The plaintiff in Salcedo relied on the same standing arguments we see in virtually every TCPA case. That receiving and opening the text wasted his time. That both he and his phone were tied up and unavailable for other purposes. And the single text message somehow invaded the plaintiff’s right to privacy.
These type of allegations have been sufficient to survive jurisdictional motions throughout the country, but the Eleventh Circuit was having none of it. Notably, the court distinguished single-fax cases, which involved actual usage of paper, toner, and ink, and legitimately tied up a fax machine for around a minute. The court held that those type of tangible costs are simply lacking in a text case, particularly when the plaintiff did not allege that he was charged per text.
The court also noted that a text message is “qualitatively different” from a fax when it comes to intangible costs, such as tying up a machine. Fax machines, the court reasoned, are only capable of receiving one fax at a time, and it can take a minute or more for a single fax to be received. A cell phone, by contrast, can receive multiple messages at a time, and the user can access the phone’s other messages while the message is being received. Accordingly, circuit precedent conferring standing for receipt of a fax simply had no bearing on standing for receipt of a single text.
As is common in Eleventh Circuit jurisprudence, the court was also unpersuaded by Eleventh Circuit jurisprudence. The court quickly rejected Van Patten v. Vertical Fitness, 847 F.3d 1037 (9th Cir. 2017), simply stating “we find our sister circuit’s decision involving this precise issue unpersuasive.” So do we.
With no precedent to guide it, the court turned to the congressional purpose in enacting the TCPA to determine whether receipt of a single, unsolicited text message confers standing. In what became a bit of a buzzword throughout the decision, the court held: “Congress’s 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.” The court further noted that, because cell phones are “taken outside of the home,” they do not have the level of intrusion into home privacy that receipt of telemarketing calls to a residential line entails.
The court ultimately held that receiving a single unsolicited text message does not involve the type of harm that federal courts are empowered to address. A text message does not tie up a machine and prevent it from accomplishing other tasks in the same manner as a fax does. And it does not involve the type of invasion of private affairs that wiretapping or eaves dropping into a phone conversation involve.
Simply put, because there is no harm in any meaningful sense, the plaintiff lacks standing.
And although Salcedo is significant in its own right, the approach the court took to the TCPA could have significant implications for other lurking TCPA issues that have yet to be addressed in the Eleventh Circuit. The court was not particularly impressed with regulatory pronouncements, and instead looked to the intent of Congress in passing the TCPA – in particular, the congressional purpose on abusive telemarketing practices. That could have major implications for ATDS and First Amendment challenges, both of which rely heavily on the abusive-telemarketing purpose of the TCPA rather than the amorphous blob it has become.