On August 28, the Eleventh Circuit held that receiving one unsolicited text message is not a concrete injury that establishes Article III standing under the Telephone Consumer Protection Act (“TCPA”). The opinion creates a split with the Ninth Circuit and leaves open whether more significant intrusions—such as the receipt of several unwelcome text messages—could constitute an injury in fact.

• The plaintiff brought a TCPA claim after receiving a single unsolicited text message from his former attorney. He alleged that he suffered a concrete injury because the text caused him to waste time by answering the message, prevented him from using his phone for other pursuits, and invaded his privacy. He filed suit on behalf of a putative class of the attorney’s former clients who similarly received unsolicited text messages, seeking to recover statutory damages of $500 per text message and treble damages of $1,500 per text sent willfully or knowingly.
• The district court found that these allegations were sufficient to establish Article III standing. The Eleventh Circuit, hearing the case on interlocutory appeal, reversed.
• The Eleventh Circuit’s standing analysis focused on the qualitative nature of the plaintiff’s alleged injury, not how small or large it was. Applying that qualitative assessment, the court reasoned that the plaintiff had not alleged any tangible costs (such as expenses or wasted paper) or sufficient intangible costs (such as being unable to use his phone while the message was transmitted), which distinguished his case from previous Eleventh Circuit TCPA cases involving receipt of junk faxes. After surveying the TCPA’s background (which showed that Congress wanted to stop nuisance telemarketing calls to homes) and common-law tort causes of action (such as trespass or conversion), the court determined that a “brief, inconsequential annoyance” from one text message was qualitatively distinct from being disturbed with unsolicited robocalls at home or occupying a recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.
• The Eleventh Circuit acknowledged the Ninth Circuit’s holding in Van Patten v. Vertical Fitness, 847 F.3d 1037 (9th Cir 2017), that unsolicited contact constituted a concrete harm under the TCPA in a case involving two unsolicited texts. The Eleventh Circuit characterized the Ninth Circuit’s holding as a “broad overgeneralization of the judgment of Congress” that failed to focus on the specific issue of text messaging.
• Moreover, the Eleventh Circuit acknowledged that the plaintiff’s allegation was “indisputably a violation of the statute as interpreted by the FCC,” but nonetheless, considered “the judgment of Congress” in assessing Article III standing, rather than simply deferring to the FCC’s interpretation of the TCPA. It concluded that Congress’s legislative findings about telemarketing suggest that the receipt of a single text message did not constitute the kind of intrusive invasion of privacy into consumers’ homes that formed the impetus for the TCPA’s enactment.
• In addition to resolving an unsettled standing issue, the Eleventh Circuit’s decision may also render class certification more difficult in text-based (and perhaps other arguably analogous de minimis-type) TCPA cases. That is because (among other reasons) the requirement of pleading and providing evidence of qualitative harm may require individual inquiries that vary from plaintiff to plaintiff depending on the severity and frequency of the alleged intrusion.
• The Eleventh Circuit’s split with the Ninth Circuit also increases the probability that the Supreme Court may ultimately weigh in on the standing-based issues implicated by the TCPA. That said, its long-awaited decision in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. 588 U.S. ___ (2019), did not settle the question of whether a district court has jurisdiction to question FCC rules and orders made pursuant to the TCPA unless they are overturned by an appellate court in a Hobbs Act petition. Thus, even if the Supreme Court does elect to weigh in, it is by no means certain that the Court taking up the matter will yield hoped-for clarity vis-à-vis the apparent conflict.

The case is Salcedo v. Hanna, and you can read more here.