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By: Matthew Foree
In Salcedo v. Alex Hanna, the U.S. Court of Appeals for the Eleventh Circuit has just issued a major decision holding that receipt of a single unsolicited text message does not establish standing under the Telephone Consumer Protection Act (“TCPA”). A copy of the opinion is available here.
In this case, the plaintiff, who was a former client of the defendant law firm, received a multimedia text message from the defendant offering a 10% discount on his services. Plaintiff filed suit as a representative of a putative class of former clients who received unsolicited text messages from the defendant in the past four years alleging violations of the TCPA.
In reaching its decision, the court considered Eleventh Circuit precedent in the Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D. D. S., P. A. case, in which it found standing for a plaintiff who alleged that receiving a junk fax in violation of the TCPA harmed him because, during the time that it took to process the fax message, his fax machine was unavailable for legitimate business. The court distinguished that case based on differences between faxes and text messages. Among other things, it found that a fax message consumed the fax machine entirely while a text does not consume a cellular phone. It noted that, unlike a cellular phone, a fax machine is unable to receive another message while processing.
The court also looked to the judgment of Congress as to whether plaintiff’s allegations were treated as a concrete injury-in-fact. Among other things, the court recognized that “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. In particular, the findings in the TCPA show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging.” The court determined that Congress’s “privacy and nuisance concerns about residential telemarketing are less clearly applicable to text messaging.” Significantly, it noted that a single unwelcome text message will not always involve intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does. As part of its analysis, the court also found the Ninth Circuit decision in the Van Patten v. Vertical Fitness Group, LLC case, which dealt with the same issue, unpersuasive. It distinguished that case by noting that it stopped short of examining whether isolated text messages not received at home come within the judgment of Congress.
The Eleventh Circuit also found that history and the judgment of Congress do not support finding concrete injury in plaintiff’s allegations. It noted that the plaintiff did not allege “anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone.” The court summed up its position by stating that 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 waved in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”
Judge Pryor concurred in judgment only and noted that the majority opinion appropriately, and her view, leaves unaddressed whether a plaintiff who allege that he had received multiple unwanted and unsolicited text messages may have standing to sue under the TCPA. With this understanding, she concurred in the majority’s judgment.
It remains to be seen how this case will be used to defeat standing in future cases, including how it is applied to cases involving multiple text messages and calls to cellular telephones. This is a major decision that will have a drastic effect on standing in TCPA class action cases. If you have any questions about this decision, please do not hesitate to contact Matt Foree at firstname.lastname@example.org.