United States: A Tale Of Two Texts: Are Unsolicited Text Messages Ever OK Under The TCPA?

Last Updated: October 7 2019
Article by Stephanie A. Sheridan and Cody DeCamp

An important question in the wake of Spokeo Inc. v. Robbins has been how the "concrete" injury requirement limits, if at all, federal jurisdiction over statutory penalty lawsuits where the plaintiff has not sustained any monetary damage. Federal circuit courts have reached differing outcomes when applying Spokeo to different statutes. See, e.g. Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir. 2019) (Fair Debt Collection Practices Act), Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312 (3d Cir. 2018) (Fair Credit Reporting Act), Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018) (Americans With Disabilities Act), Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583 (7th Cir. 2016) (Real Estate Settlement Procedures Act).

On August 28, 2019, the Eleventh Circuit addressed this issue within the context of the Telephone Consumer Protection Act (TCPA) – the godfather of all "gotcha" statutes. Specifically, the court considered whether a single, unsolicited, text message could establish Article III standing for the purposes of supporting a claim for statutory penalties in Salcedo v. Hanna—F. 3d—2019 WL 4050424 (11th Cir. Aug. 28, 2019). The court held that a single text message was insufficient to confer standing, creating a potential circuit split with the Ninth Circuit's holding in Van Patten v. Vertical Fitness Group, LLC, 847 F. 3d 1037 (9th Cir. 2017) and the Second Circuit's decision in Melito v. Experian Marketing Solutions, Inc., 923 F. 3d 85 (2nd Cir. 2019).

Salcedo, Van Patten and Melito focus on the Supreme Court's decision in Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016) in arriving at their differing conclusions. Spokeo broke no new ground when it reaffirmed that Article III standing requires plaintiff to allege a concrete "injury in fact." Id. at 1548. Spokeo, however, did clarify when intangible harm could cause an "injury in fact" sufficient to confer Article III standing. Id.at 1549. To determine if the intangible harm, such as receipt of an unsolicited text message, is sufficient to establish standing, courts are to look to the "history and the judgment of congress." Id. These three decisions may set the stage for further clarification by the Supreme Court specific to the TCPA.

Salcedo v. Hanna

On August 12, 2016, plaintiff received a text message from his former attorney offering a ten percent discount on future legal services. Salcedo, 2019 WL 4050424 at *1. Plaintiff proceeded to file a complaint in the district court on behalf of a putative class alleging violations of the TCPA. Id. 

The plaintiff alleged that he had standing to bring a TCPA claim because the text message "caused [him] to waste his time answering or otherwise addressing the message. While doing so, both plaintiff and his cellular device were unavailable for otherwise legitimate pursuits." Id. at *3. Additionally, the complaint alleged that this single, unsolicited, text represented "an invasion of plaintiff's privacy and right to enjoy the full utility of his cellular device." Id. 

The plaintiff attempted to argue that his injury was similar to receiving an unsolicited fax message, which was deemed to confer standing under the TCPA by the eleventh circuit  in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F. 3d 1245, 1252 (11th Cir. 2015).  Id.  

The Salcedo court found these allegations to be "qualitatively different" from those in Palm Beach GolfId. at *3-4. The court noted that receiving an unsolicited fax message "consumes the receiving device entirely," and created a "fully realized opportunity cost of being unable to receive other faxes for a full minute." Id. By comparison, a text message does not "consume[] the receiving device," and 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." Id. 

The Salcedo court did not, however, limit its analysis to distinguishing the factual differences between faxes and texts. Rather, the Eleventh Circuit applied the framework laid out in the landmark US Supreme Court's decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which requires courts to look at the history and judgment of congress to determine if allegations made in the complaint are of the type that congress intended to constitute a concrete injury in fact. Id. at *4.

First, the court noted that text messages were not a ubiquitous form of communication when the TCPA was passed in 1991, and the statute and subsequent amendments have not added text messages to the categories of restricted telemarketing. Id. The Salcedo court's review of the statutory history of the TCPA revealed that Congress was most concerned with unrestricted telemarketing causing an intrusive invasion of the privacy of the home. Id. With this in mind, the court found that "a single unwelcome text message will not always involve an intrusion of privacy of the home in the same way that a voice call to a residential line necessarily does." Id. at *5. The court mentioned in passing that plaintiff's complaint did not allege that he was home when he received the text message, but did not explain whether, had he been home, it might have reached a different conclusion. Id. at *5. 

Second, the court followed the instructions in Spokeo to determine if the type of intangible harm alleged in the complaint "has a close relationship to a harm that has traditionally been regarded as provided a basis for a lawsuit in English or American courts." Id. at *6. The Eleventh Circuit had no difficulty answering this question with a resounding no. Id.  at *6-7. The court found that the text message did not implicate the kind of "severe kinds of actively intermeddling intrusions" required for torts for intrusion into privacy and nuisance, and that the harm alleged constituted nothing more that "a brief, inconsequential annoyance [] categorically distinct from those kinds of real but intangible harms." Id. at *7.     

Divergence from the Ninth Circuit's Decision in Van Patten v. Vertical Fitness Group, LLC

Plaintiff asserted that the Ninth Circuit had already spoken on whether text messages create Article III standing for a TCPA claim in Van Patten v. Vertical Fitness Group, LLC, but the Eleventh Circuit rejected the Ninth Circuit's reasoning.

In Van Patten, a plaintiff brought a claim for violations of the TCPA after he received two text messages from his former gym informing him that the gym was under new management and inviting him to reactivate his membership. Id. at 1041. On appeal from an order granting defendant's motion for summary judgment, the Ninth Circuit started its analysis with an evaluation of Plaintiff's Article III standing under Spokeo. Id. at 1042-1043.   

In conducting the Spokeo analysis, the Ninth Circuit found that Congress had in fact adjudged unsolicited text messages to create a concrete injury in fact. Id. at 1043. Rather than look to see if Congress specifically discussed text messages in the 1991 statute, the Ninth Circuit instead hung its hat on the broad policy of the TCPA which "establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent. Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm." Id. Once this congressional directive was found, the Ninth Circuit found that unsolicited text messages represented "the precise harm and infringe[d] the same privacy interest Congress sought to protect in enacting the TCPA." Id.

The Eleventh Circuit in Salcedo considered this analysis and found it wanting, determining that  Van Patten represented a "broad overgeneralization of the judgment of Congress." Salcedo, 2019 WL 4050424 at *5. Rather than look at the broad objectives of the TCPA, the Salcedo court elected instead to "focus[] [their] analysis on text messaging specifically." Id. 

Salcedo also criticized the historical analysis conducted by the Van Patten court. Id. at *7. While both decisions analyzed privacy and nuisance torts to determine a historical basis for establishing an injury in fact, the Salcedo court went a step further and evaluated the "kind and degree of harm" these torts seek to address. Id. As stated above, when analyzing this qualitative harm, the Salcedo decision found that a single text message simply did not rise to the level of wrong that privacy and nuisance torts seek to redress.

The Eleventh Circuit Did Not Address Melito

Curiously absent from the Salcedo decision is any mention of the Second Circuit's Melito decision. Melito, like Van Patten, determined that the receipt of unsolicited texts messages satisfies TCPA standing under Spokeo. Melito, 923 F. 3d at 92-93. The Second Circuit agreed that unsolicited texts constitute the same type of "nuisance and privacy invasion" constituted the same type of injury that Congress intended to remedy under the TCPA, as "the receipt of unwanted advertisements is itself the harm." Id. at 94. (emphasis in original) As such, the Melito court found no issue with the Ninth Circuit finding standing even though the only harm alleged was a statutory violation.  Id.

Is Salcedo the Sign of a Turning Tide?

Salcedo is a very interesting development, but it is far too early for advertisers to break out the champagne. There will undoubtedly be further appellate challenges to the Salcedo decision, including reconsideration and en banc review, as well as a potential appeal to the Supreme Court. Melito, for its part, may be the subject of a certiorari petition as early as October 16, 2019. Nevertheless, Salcedo offers a well-reasoned analysis of the TCPA, and a strong tool with which to push back against text cases in other circuits. Of course, as a practical matter, companies should not let their guard down for an instant, and should strictly adhere to the most liberal and expansive constructions of the TCPA, regulations, and FCC guidance. Until further notice, the TCPA will remain a business killer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions