“TCPA” CIRCUIT SPLIT TRIGGERED BY ONE SINGLE UNSOLICITED TEXT MESSAGE

I. INTRODUCTION

As technology continues to advance it has pushed for Americans to be increasingly connected to the world via smartphones and other mobile devices.1 As of 2021, 97% of Americans now own a cell phone.2With a such newfound overwhelming cellphone usage, the Telephone Consumer Protection Act (“TCPA”) was enacted in 1991 to put restrictions on the use of telephone equipment.3 The TCPA was expanded to include “text messages” as part of the prohibition of misleading or inaccurate caller identification information.4 With the shift in technology, it has opened the door to cell phone users receiving spam and unwanted text messages seeking to gain personal information, defraud consumers or even try to get a response from the consumer for the purpose of selling their phone number as a target.5 In 2020, the Federal Communications Commission (“FCC”) received around 14,000 consumer complaints about unwanted text messages.6 Through the first six months of 2022, the commission has received 8,500 complaints.7 As a result, American citizens are dissatisfied with the constant receipt of scam texts and are urging that something be done.8

In order for these fed up recipients of unwanted text messages to bring suit in court, they must have Article III standing under the United States Constitution.9 Therefore, this note will focus in discussing the current circuit split discussing the issue of “whether a single unwanted text message is enough of an injury to give a Plaintiff standing to sue under the TCPA.”10 Part II of this note will first examine the legislative history of the TCPA and its current modern trend. Then, Part III of this note will discuss the Article III standing requirement for a Plaintiff to bring suit in federal court. Next, Part IV will analyze the current circuit split of the Fifth Circuit joining the Second, Third, Seventh, and Ninth circuit, standing against the Eleventh Circuit.11 Part V will conclude by applying the case law and discussing how and why the Court(s) should rule.

II. TELEPHONE CONSUMER PROTECTION ACT

A. LEGISLATIVE HISTORY

The TCPA was enacted during an era in which consumers relied on fax machines due to limited cell phone usage.12 Advertising through telemarketing and fax advertisements provided benefits to consumers and businesses.13 However, sending unsolicited faxes came at a cost to the recipient in the form of ink, paper, and blocked phone lines.14 Due to ongoing consumer complaints, by 1992 over forty states placed regulations on the use of auto dialers and prerecorded messages or somehow restricted telemarketing.15 One of the reasons for the need for a solution was the use of a “random or sequential number generator,” these were auto-dialers which caused annoyance and inefficiency.16 For example, an auto-dialer called each of the 10,000 phone lines of Emory University, playing a prerecorded message urging listeners to call a 1-900 number to win a prize.17 The machine played the messages, left the message on the voice mails, and called every extension on the campus for a period of three days.18 Consequently, Congress was forced to step in 1991 to address the growing number of telephone marketing calls.19 “The law provided a right of action with statutory damages and a relatively low threshold to state and prove a claim,” making the law attractive to consumers and class action attorneys.20

The purpose of the TCPA is to restrict the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages.21 At the heart of the TCPA was an aim to regulate: (1) the use of computerized autodialing machines to deliver pre-recorded messages; and (2) the practice of sending unsolicited fax advertisements.22 The TCPA created a right that did not exist at common law.23

B. APPLIED TO MODERN TREND

With the shift from fax to email and then the emerging existence of the cellphone, the TCPA had to address these advances in technology. The increased use of cellular phones brought a renewed justification for the TCPA because safety, privacy, and cost-shifting concerns were even greater when “robocallers” or other technology was issued to reach a consumer on their cell phone.24 In 2003, the FCC determined that the TCPA’s ban on auto-dialers encompassed both voice and text calls.25 In 2009, the 9th Circuit agreed with the FCC’s determination that the TCPA applied to text messages.26 There remains a need for continued regulation supported by the increase in TCPA-related wireless complaints, the increase in the overall number of cell phones, and the result of consumer’s willingness to bring cell phones everywhere.27

III. ARTICLE III STANDING

A. “INJURY-IN-FACT” REQUIRMENT

Article III limits the powers of federal courts to “cases or controversies.”28 Standing is used to ensure that a particular Plaintiff has a sufficient stake in the controversy he brings before the court to justify the court’s action.29 The requirements of the doctrine may be stated simply: (1) the Plaintiff must have suffered an injury in fact; (2) the Plaintiff’s injury must be fairly traceable to the actions of the defendant; and (3) the relief requested in the suit must redress the Plaintiff’s injury.30 In Spokeo Inc. v. Robins, the Court analyzed whether the Plaintiff met the injury-in-fact requirement.31 The Court held that the requirement “require[d] a Plaintiff to show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”32

IV. CIRCUIT COURT SPLITS

 1) CIRCUIT COURTS FOLLOWING SPOKEO V. ROBINS

 A. THE NINTH CIRCUIT COURT

In, Van Patten v. Vertical Fitness Group, LLC, the Ninth Circuit Court held that the recipient “alleged a concrete injury in fact sufficient to confer Article III standing.”33 Petitioner visited a gym to obtain information about a gym membership and during the visit he gave his contact information to determine whether he was pre-qualified to become a member.34 His cell phone number was included as part of the contact information Petitioner gave to the gym.35 Petitioner met with the manager to discuss his membership and signed the membership agreement but three days later he called to cancel his membership.36 Later, the gym had a brand change and to help announce this change it made an announcement via text messages.37 Petitioner received a total of two text messages from the gym.38 This caused the Petitioner to file a putative class action lawsuit arising out of the text messages.39 In his claim he alleged that the unauthorized text messages he received “caused consumers actual harm,” including “the aggravation that necessarily accompanies wireless spam” and that consumers “pay their cell phone service providers for the receipt of such wireless spam.”40

The Court first analyzed whether the petitioner had Article III standing. The Court held that the petitioner did allege a concrete injury in fact sufficient to render Article III standing.41 Next, the Court analyzed whether the petitioner had given the gym prior express consent. The Court held that in the context in which the petitioner had given his phone number he did in fact consent to receiving text messages.42 This was because express consent is not an element in a prima facie case rather it is an affirmative defense.43 The Ninth Circuit Court focused on the standing of unsolicited telemarketing phone calls or text messages, holding that “by their nature, [they] invade the privacy and disturb the solitude of their recipients.”44 Concluding, that unwanted text messages absent consent is a concrete injury giving rise to Article III standing.45

B. THE SEVENTH CIRCUIT COURT

In 2020, in Gadelhak v. AT&T Services, Inc., the Seventh Circuit Court addressed a putative class action against a telecommunications company. AT&T used a tool that “sen[t] surveys to customers who ha[d] interacted with AT&T’s customer service department.”46 Using this tool, AT&T sent petitioner five text messages asking surveys in Spanish.47 Petitioner was not a customer of AT&T and was not a Spanish speaker, additionally he was on the national “Do Not Call Registry.”48 Gadelhak, brought a putative class action against AT&T for violation of the TCPA.49

First analyzing the Plaintiff’s standing to bring suit, the Court held that it depends on whether the unwanted texts from AT&T caused him concrete harm or was merely a technical violation of the statute.50 Unlike the Eleventh Circuit Court which held that the intrusion upon seclusion addressed only invasions of privacy such as, eavesdropping and spying, this Court has a different view.51 Other courts have recognized that there is a liability for intrusion upon seclusion for irritating situations, such as the case here of the harm posed by unwanted text messages.52 In Spokeo the Supreme Court held that when looking to analogize harms set out by the common law, one should look for a “close relationship” in kind and not degree.53 The common law offers guidance, but it does not stake out the limits of Congress’s power to identify the harms deserving of a remedy under the Act.54 Therefore, the Seventh Circuit held that “a few unwanted text messages may be too minor an annoyance to be actionable at common law. But such texts nevertheless post the same kind of harm that common law courts recognize – a concrete harm that Congress has chosen to make legally cognizable.”55 Concluding, that unwanted text messages can constitute a concrete injury-in-fact; therefore, joining the Second and Ninth Circuits.56

C. THE THIRD CIRCUIT COURT

In Sussino v. Work Out World Inc., Plaintiff alleged that she received an unsolicited call on her cell phone from a fitness company called Work Out World (“WOW”); without an answer WOW left a one-minute voice message detailing a promotional offer.57 Plaintiff filed a complaint claiming that the phone call and voicemail message violated the TCPA’s prohibition of prerecorded calls to cellphones.58 As a counterargument, WOW claimed that the TCPA did not prohibit a single prerecorded call to a cellphone if the owner was not charged for the call, because Congress was concerned about the cost of the calls.59 But, the Court holds that the section states “calls to a [cell phone] … not charged to a party;” therefore, Plaintiff has a cause of action even if the phone’s owner is not charged for the call.60

Applying a previous Third Circuit Court holding, the Court held that Sussino alleged injuries were concrete for two reasons.61 First, Congress adequately identified the alleged injury because the TCPA addresses itself directly to single prerecorded calls from cellphones and states its prohibitions acts “in the interest of [] privacy rights.”62 Additionally, congressional findings supporting the TCPA refer to complaints that “automated or prerecorded telephone calls are a nuisance [and] … an invasion of privacy.”63 Concluding that Sussino asserted a nuisance and an invasion of privacy derived from the prerecorded call and; as a result, asserting the type of harm which Congress sought to prevent and which the TCPA proscribed.64

D. THE SECOND CIRCUIT COURT

In Melito v. Experian Mktg. Sols., Inc., the U.S. Court of Appeals for the Second Circuit, decided whether Plaintiffs’ receipt of unsolicited text messages, without any other injury, was sufficient to demonstrate injury-in-fact.65 Plaintiffs each received unsolicited spam text messages from or on behalf of American Eagle Outfitters (“AEO. ”)66 Plaintiffs’ responded by filing a putative class-action claiming that these text messages were sent in violation of the TCPA.67 The Court held that first, the nuisance and privacy invasion on spam texts are the very harms which congress was concerned when enacting the TCPA.68 Second, it is rooted in history that causes of action to remedy such injuries were traditionally regarded as providing bases for lawsuits in English or American courts.69 These two requirements was all that was needed and Plaintiffs’ were not required to demonstrate any additional harm.70 Holding that, Plaintiffs’ satisfied Article III’s standing requirement because the receipt of unwanted advertisement is itself the harm.71

E. THE FIFTH CIRCUIT COURT

The United States Court of Appeals for the Fifth Circuit is the most recent court joining the Spokeo v. Robins standard.72 In Cranor v. 5 Star Nutrition, L.L.C., Plaintiff made a purchase at a 5 Star location and while completing the purchase he provided his cell phone number.73 Later, the company sent Plaintiff a series of unsolicited advertising text messages.74 The series of the unsolicited text messages caused the Plaintiff to respond with a “STOP” request.75 The parties entered into a pre-suit settlement agreement to avoid litigation but 5 Star persisted and sent Plaintiff another text message promoting a sale at its chain locations; again, Plaintiff responded “STOP.”76 Plaintiff filed a class action complaint alleging that the unsolicited text messages caused him “the very harm that Congress sought to prevent [in enacting the TCPA] – namely, a nuisance and invasion of privacy.”77

The Court argues that the TCPA “cannot be read to regulate unsolicited telemarketing only when it affects the home.”78 This is because, the TCPA expressly covers cellular phones and it also “includes text messaging in its prohibitions on transmitting false caller ID information.”79 Arguing that the text of the Act shows that Congress intended to remediate “nuisance and invasion of privacy” in a broader set of circumstances, not just the home.80 Moreover, the Court holds that the Plaintiff’s injury “has a close relationship” to common law public nuisance.81 The Court uses a metaphor to explain this, saying that the Plaintiff is “similar to someone who wants to use another piece of infrastructure like a road or a bridge without confronting a malarial pond, obnoxious noises, or disgusting odors.”82 On the other hand, the Defendant “is similar to someone who emits pollution or disease that damages members of the public.”83 Applying the Spokeo v. Robins holding the court concluded that the Plaintiff alleged a cognizable injury in fact, which was a nuisance arising out of an unsolicited text advertisement. 84

Moreover, the Court held that Salcedo never addressed public nuisance and that view is mistaken for two reasons.85 First, “Salcedo’s view of trespass to chattels is substantially narrower than the scope of that action at common law;” thus, “mistaking the twentieth-century Restatement for the eighteenth-century common law.”86 Second, “Salcedo’s focus on the substantiality of the harm in receiving a single text message misunderstands Spokeo.”87 “That is, ‘[o]ur inquiry is focused on types of harms protected at common law, note the precise point at which harms become actionable;” therefore, rejecting the Salcedo focus.88

2) CIRCUIT COURTS FOLLOWING SPOKEO V. ROBINS WITH OPPOSING HOLDING.

A. THE ELEVENTH CIRCUIT COURT

In Salcedo v. Hanna, the Eleventh Circuit Court of Appeals stands on its own side of the circuit split in deciding whether a single unsolicited text message, sent in violation of a federal statute, is a concrete injury in fact that establishes Article III standing to sue in federal court.89 Plaintiff, a former client of Florida attorney Alex Hanna and his law firm received a multimedia text message from Defendant offering a ten percent discount on his services.90 Plaintiff filed suit as the representative of a putative class of former Hanna clients who also received unsolicited text messages in the past four years, alleging violations of the TCPA.91 Additionally, Plaintiff did not make any allegations of specific time waste; consequently, a cell phone user can continue to use all the device’s function while it is receiving a text message.92

Without applicable precedent and finding that other sister circuit’s decisions are unpersuasive the court turns their analysis to history and judgment of Congress to determine Plaintiff’s allegation of a concrete injury in fact.93 To note, the Court made a note that the alleged facts were qualitatively different from those in the Circuit precedent.94 The Court found that the history and judgement of Congress did not support finding concrete injury in the Plaintiff’s allegations because “a single unwanted text message does not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.”95 Additionally, as portable objects and ability to be silenced, cells phones may involve less of an intrusion than calls to a home phone.96 Looking at history, the Court turns to the tort of intrusion upon seclusion, holding that Plaintiff’s allegations fall short of the degree of harm because the harm is not isolated, momentary, and ephemeral.97

Now, turning to the judgment of Congress, the Court notes that Congress has not made any determinations or decisions regarding the TCPA provisions and findings about harms from telemarketing via text messages.98 Congress has only discussed “the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages.”99 Additionally, Congress’s legislative findings about telemarketing in the TCPA “show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging.”100 It concludes then that on the topic of text messaging “the judgment of Congress is ambivalent at best; its privacy and nuisance concerns about residential marketing are less clearly applicable to text messaging.” 101

The Court also considers the judgment of Congress when assessing standing and focuses that Congress was concerned about intrusive invasions of privacy into the home when it enacted the TCPA and not on text messaging.102 Applying this to the case at hand, “Salcedo [did] not allege[] that he was in his home when he received Hanna’s message.”103 Moreover, other concerns behind the TCPA was that it had found that telemarketing by fax as problematic because it occupied the machine making it unavailable for business while it receiving the junk fax.104 Such concern is no longer applicable to the instantaneous receipt of text message.105 Accordingly, “[t]he judgment of Congress, then, provides little supporting for finding that Salcedo’s allegations state a concrete injury in fact.”106

Another aspect that the Court looks at is at quality, not quantity.107 The Court emphasizes that “[they] are not attempting to measure how small or large Salcedo’s alleged injury is” because Article III is not a measuring stick.108 In assessing the facts, the Court has done so qualitative, assessing how concrete and real the alleged harm is and reaching the conclusion that it does not constitute an injury in fact.109 To support their finding, the Court takes a look at their precedent, in which “allegations of wasted time can state a concrete harm for standing purposes.”110

Precedent “suggests that concrete harm from wasted time requires, at the very least, more than a few seconds.”111 Congress sheds light on this under the TCPA because it “instructs the FCC to establish telemarketing standards that include released the called party’s line within five seconds of a hang-up, demonstrating that, on the margin, Congress does not view tying up a phone line for five seconds as a serious intrusion.”112 The Court does acknowledge that Congress is in the position to asses new harms in light of development in technology and society and to respond to these concerns, but the federal courts do not have this task; thus, they only have the power “to say what the law is.”113

With respect to nuisance, Plaintiff’s text message “is [] not closely related to the[se] traditional harms because it is not alleged to have infringed upon Salcedo’s real property, either directly or indirectly.”114 Accordingly, the Court concluded that the Plaintiff’s single unsolicited text message did not state a concrete harm that met the Article III injury in fact requirement.115

V. CONCLUSION

In Salcedo v. Hanna the Eleventh Circuit Court applied a more rigid interpretation of the Spokeo v. Robins holding. The Eleventh Circuit Court continues to stand on one side of the scale, holding that a single text message does not constitute a concrete injury in fact establishing Article III standing. On the other side of the scale, the Second, Third, Fifth, Seventh, and Ninth Circuit Courts held that recipients of unwanted text messages were injured and relied on Article III standing. At the time that TCPA was passed its main purpose was to protect consumers from the calls and advertisements their fax machines received. More specifically, these unsolicited calls and advertisements caused consumers to incur a cost and a temporary block from their device.  As technology advances and we have made a shift from fax machines to cell phones as our main mode of communication, this does not minimize the protection the TCPA set out to give.

The Salcedo Court incorrectly held that cellphones are different from fax machines because they do not preoccupy the phone from other duties and do not incur any extra costs to the recipient. Even though this is no longer the case today the consequences with the change in technology is simply just different. Now, consumers are faced with having to block numbers, unsubscribe, or to stop what they are doing to check the contents of the message. There is currently a rise of people making their livelihood from their phones; therefore, cell phone dependency has radically increased. As they work from their phones these consumers are faced having to take a moment from their work time to ensure that the messages received are not work related, while also facing the possibility of opening a scam message.

So, even though receiving these text messages might not cost any money to the recipient it still preoccupies the phone. This is because people are on their phones for most of their day, so the constant receipt of incoming text messages causes confusion and displeasure. For this reason, it is important for Courts to reach the conclusion that receipt of one single text message is enough of a concrete injury in fact establishing Article III standing to sue in federal court.116 This is because Congress enacted the TCPA to decrease the intrusion into consumer privacy, and with the rise in technology Courts should continue to uphold this standard.

A. Proposed Framework

Congress should continue to hold businesses accountable for unsolicited marketing. This is because the growth of social media has opened the door to more marketing strategies than ever before. These marketing strategies do not necessarily involve tele marketed text messages and businesses should implement these in their marketing plans. Additionally, with a heavy reliance on technology and cell phones used as a place for work, consumers don’t want to be interrupted by ad calls and messages. This should lead Congress to give consumers the protection they deserve.

As the Fifth Circuit recently joined the Second, Third, Seventh, and Ninth circuits, it emphasized Congress’s goal in remediating a nuisance and an invasion of privacy. Therefore, the ideal approach would be for courts to continue joining the majority in the split, which would result in pushing Congress to highlight the importance of the TCPA in protecting consumers.

Additionally, recognizing that consumers who receive a single text message confers an injury in fact granting Article III standing will open the door to many lawsuits. Therefore, Congress is in the position to pass specific legislations addressing specific points required to bring suit. In a way, Congress needs to enact narrow legislation in which it follows the holding of Spokeo v. Robins.