Eleventh Circuit Splits with Ninth in Holding that Recipient of a Single Unsolicited Text Message Lacks Standing to Assert a TCPA Claim

John Salcedo received a single unsolicited text message from the firm of his former lawyer, offering a discount on future services.  Salcedo sued the lawyer and the law firm, seeking statutory and treble damages for alleged violation of the Telephone Consumer Protection Act (“TCPA”).  In his complaint, Salcedo alleged that the text message caused him “to waste his time answering or otherwise addressing the message,” which made him and his phone “unavailable for otherwise legitimate pursuits,” all of which, he claimed, “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”

The defendants moved to dismiss, arguing that the plaintiff lacked standing and failed to state an actionable claim.  The district court denied the motion but permitted interlocutory appeal under 28 U.S.C. § 1292(b).  The Eleventh Circuit accepted the plaintiff’s petition for permission to appeal and reversed the decision of the district court, holding that the plaintiff’s allegations were insufficient to establish standing.  Salcedo v. Hanna, 2019 WL 4050424 (11th Cir. Aug. 28, 2019).

In an opinion written by Judge Branch and joined by Judge Jill Pryor and Judge Danny C. Reeves visiting from the Eastern District of Kentucky, the court began with an overview of the TCPA, noting that Congress was concerned with the “nuisance” and “invasion of privacy” experienced by “residential telephone subscribers” when it enacted the TCPA back in 1991.  The court observed that Congress amended the statute in 1992 to allow the Federal Communications Commission, charged with enacting regulations implementing the statute, to exempt free-to-receive cellular calls, though the FCC has not done that, and that the statute itself is silent as to text messaging—the TCPA applies to texts only because of regulations promulgated by the FCC.

The court next reviewed Article III’s “case or controversy” requirement and its corollary requirement that a plaintiff have suffered a concrete injury in fact.  But “[a] concrete injury,” the court noted, “need be only an ‘identifiable trifle.’”  Still, Congress’s creation of a statutory right and private right of action does not automatically create standing, and “[w]hen the concreteness of an alleged injury is difficult to recognize, we look to ‘history and the judgment of Congress’ for guidance.”  Turning to its own precedents, the court found Salcedo’s allegations “qualitatively different” from those in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), and other “junk fax” cases, which included allegations that the unwanted fax tied up the fax line and consumed paper and toner or ink.  Salcedo alleged generally that the law firm’s text wasted his time, but included no “specific time allegation”—and, the court noted, “[a] fax message consumes the receiving device entirely, while a text message consumes the receiving device not at all.”  Salcedo’s general allegation about “unavailability” similarly failed to identify any “particular loss of opportunity,” and no such loss could be assumed, given the fact that “[a] fax machine’s inability to receive another message while processing a junk fax has no analogy with cell phones and text messaging.”  The court acknowledged that the Ninth Circuit reached a different conclusion in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), but found that decision unpersuasive because of its “broad overgeneralization of the judgment of Congress” and lack of focus “on text messaging specifically.”

Receipt of one text message, the court continued, is “qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA,” including notably “privacy within the sanctity of the home.”  Cell phones are used all over the place, not just at home—and indeed Salcedo had not alleged that he was at home when he received the text at issue.  Cell phones’ ringers can be turned off, and the phones can be used for texting, calling, or other functions even while texts are being received.  And the application of the TCPA to text messages at all, the court repeated, was a creature of FCC rulemaking, not text-specific Congressional action.  The most that can be said is that Congress has not overridden that rulemaking—but “congressional silence is a poor basis for extending federal jurisdiction to new types of harm.”

The court also rejected Salcedo’s arguments that his alleged harm “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,” one of the guideposts discussed in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).  “Intrusion upon seclusion,” the privacy-related tort most similar to Salcedo’s allegations, applies to “substantial” intrusions on “private affairs” that are “highly offensive to a reasonable person”—a standard not met, the court held, by Salcedo’s allegations.  Nor could Salcedo rely successfully on an analogy to trespass or nuisance, because those torts involve infringements on land, or compare his situation to a “trespass to chattel,” which traditionally requires that the rightful possessor be deprived of the use of the chattel for some time.  “History shows,” the court concluded, “that Salcedo’s allegation is precisely the kind of fleeting infraction upon personal property that tort law has resisted addressing.”

The court emphasized that its holding was based on its analysis of the quality and not the quantity of Salcedo’s alleged injury.  He has not alleged an interrupted family dinner, an inability to use his phone, or the consumption of chargeable minutes, paper, or ink.  “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 Jill Pryor concurred in the judgment, writing separately to note the narrowness of the court’s holding and the fact that the opinion left “unaddressed” a situation in which a plaintiff alleged receipt of multiple unsolicited text messages.

Posted by Valerie Sanders.

Back to top