On May 26, 2021, the Fifth Circuit reversed a district court’s dismissal of a Telephone Consumer Protection Act (“TCPA”) putative class action arising from the transmission of a single text message to the plaintiff. The court held that the nuisance arising out of an unsolicited text advertisement constituted a cognizable injury in fact, deepening a circuit split concerning whether the receipt of a single unsolicited text is sufficient to establish Article III standing under Spokeo v. Robins.

• In 2018, named plaintiff Lucas Cranor provided his cell phone number when making a purchase from defendant 5 Star Nutrition, a sports nutrition and vitamin company. Thereafter, 5 Star sent him a series of unsolicited advertising text messages. Cranor complained and the parties entered into a settlement agreement. After the settlement, however, 5 Star sent him another promotional text message. Cranor responded, “STOP,” which the company did. Nevertheless, Cranor brought a class claim for violation of the TCPA based on this single text.
• The district court determined that the receipt of a single text message did not constitute an injury in fact, reasoning that a “single unwelcome text message will 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.” The district court thus dismissed the claim.
• On appeal, the Fifth Circuit reversed. The court first examined Congress’s intent in passing the TCPA, finding that Congress wanted to protect citizens from the “intrusive invasion of privacy” and “nuisance” occasioned by aggressive telemarketing tactics. Congress concluded that the way to protect citizens was to completely ban certain types of communications. The single text Cranor received, the Fifth Circuit concluded, caused exactly this type of injury.
• The court then considered—and ultimately rejected—the reasoning of the Eleventh Circuit in Salcedo v. Hanna, 936 F.3d 1162 (2019), which previously held that receipt of a single text message does not confer standing to sue under the TCPA. (You can read our previous coverage of the Salcedo opinion here.) Specifically, the Fifth Circuit rejected the Eleventh Circuit’s view 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”:
  • First, the court reasoned, the plain language of the TCPA applies to cell phones. Second, the TCPA applies to many situations unrelated to calls to a residential phone—such as those made to a cellular phone by an autodialer—so its scope was not intended to be limited to the home. Third, the FCC was given authority to promulgate regulations implementing the TCPA, and that authority goes beyond regulating nuisances and privacy in the home.
• The court also found that the unwanted text message “has a close relationship to” common law public nuisance claims. Likening the U.S. telecommunications infrastructure to other infrastructures like a road or bridge, the court explained that Cranor wanted to use the U.S. telecommunications structure just as he expected to use other types of infrastructure—free of harassment.
  • The court determined that Cranor suffered a special harm not suffered by the public at large when he was “prompted to read” the unwanted text. Further, by having to send a “Stop” request, he depleted the battery life of his phone and used cellular minutes. These effects established a “close relationship” between Cranor’s injury and an injury from an actionable public nuisance at common law.
  • Lastly, the Fifth Circuit court noted that Salcedo failed to address public nuisance and instead used the tort of “trespass to chattels” as its common-law analogue. Even so, the Fifth Circuit observed that, at common law, trespass to chattels was actionable per se without proof of actual damage. Moreover, the court commented that Salcedo’s focus on the “substantiality” of an alleged harm “misunderstands Spokeo” and “threatens to make this already difficult area of law even more unmanageable.”
• The appeal in Cranor was decided before the Supreme Court’s landmark decision in Ramirez, and it is unclear whether the Supreme Court’s opinion would have altered the Fifth Circuit’s reasoning. The case underscores the complex (and sometimes baffling) nature of Article III standing inquiries arising from mere statutory violations. After all, it may seem incongruous that a plaintiff would have standing to sue based on the battery life and cellular data expended from the receipt of single text message, whereas another plaintiff lacks standing to sue when he is wrongly identified as a potential drug trafficker or terrorist in a credit report. At a minimum, Cranor demonstrates once again that a plaintiff’s ability to show tangible harms—even seemingly insignificant ones like the battery life depleted from one text message—often strengthens the prospects of establishing Article III standing.
• The case is Cranor v. 5 Star Nutrition, LLC. Read more here