In a recent decision, the Eleventh Circuit held that a plaintiff’s receipt of a single, unsolicited text message does not constitute an injury sufficient to confer standing necessary to pursue a viable claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The holding in Salcedo v. Hanna – F.3d —, 2019 WL 4050424 (11th Cir. Aug. 28, 2019), has created a circuit split on the issue of Article III standing under the TCPA—a split which may cause the Supreme Court to clarify the scope of its decision in Spokeo, Inc. v. Robins (previously discussed here). In Spokeo, the Court addressed the question of what constitutes a concrete injury sufficient to establish Article III standing to pursue a statutory cause of action (there, the Fair Credit Reporting Act). But lower courts have interpreted and applied Spokeo in differing ways. The Eleventh Circuit decision may also have the effect of curbing TCPA class actions. Plaintiffs in that circuit will now have to allege and prove the sufficient concrete harm caused by their receipt of text messages.
In Salcedo, the plaintiff based his TCPA claim on receipt of a single, unsolicited text message from his former lawyer. The district court allowed the plaintiff to proceed with the claim on that basis. The Eleventh Circuit reversed. The court concluded that based on its precedent, the legislative history of the TCPA, and Spokeo, the plaintiff had failed to establish that the single text message created a concrete injury sufficient to confer Article III standing under the TCPA. Indeed, in reaching this conclusion, the court explained that the plaintiff’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.”
The Eleventh Circuit’s decision is in direct contrast to a Ninth Circuit decision. In Van Patten v. Vertical Fitness Group, LLC (previously discussed here), the Ninth Circuit held that the plaintiff’s alleged receipt of two unsolicited text messages was sufficient to establish a concrete injury for establishing Article III standing under Spokeo. But the Eleventh Circuit found the Ninth Circuit’s reasoning unpersuasive. Indeed, Salcedo rejected the Ninth Circuit’s holding on the grounds that it “stopped short” of examining whether the isolated text messages caused the harm that Congress had intended to protect against, instead relying on an “broad overgeneralization” of the intent behind the statute.
Given the circuit split and the two disparate standards for establishing a TCPA injury sufficient to satisfy Article III, the Supreme Court may revisit its decision in Spokeo to clarify the contours of the concreteness requirement under Article III. In the meantime, the Eleventh Circuit’s decision will likely have the effect of tempering TCPA class action litigation in that circuit.