A unanimous panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that a plaintiff who received only one ringless voicemail (RVM) had alleged a concrete injury sufficient to provide Article III standing to assert a claim under the Telephone Consumer Protection Act (TCPA).
In Dickson v. Direct Energy LP, the plaintiff alleged that the defendant delivered multiple RVMs to his cell phone voicemail box in which the defendant advertised its services. He also alleged that he never consented to receiving these communications. The plaintiff filed suit individually and on behalf of all others similarly situated alleging that the defendant violated the TCPA’s automated calling prohibition and that he was harmed by the RVMs because they tied up his phone line, cost him money, disturbed his solitude and invaded his privacy. The TCPA generally prohibits calls to a cell phone number “using any automatic telephone dialing system or an artificial or prerecorded voice” without the recipient’s prior express consent.
At his deposition, the plaintiff testified that he received eleven RVMs from the defendant. The defendant’s expert witness, based on an analysis of the plaintiff’s phone records, concluded that of the eleven voicemails the plaintiff produced in discovery, only one was from the defendant. The plaintiff testified that “while he could not remember precisely what he was doing when he received that message, he was ‘sure it interrupted something’ in his routine.”
The district court granted the defendant’s motion to dismiss, finding that the plaintiff suffered no concrete harm and therefore lacked standing. According to the district court, the plaintiff’s receipt of a single RVM did not constitute a concrete harm sufficient for Article III purposes because (a) he could not recall what he was doing when he received the RVM, (b) he was not charged for the RVM, (c) the RVM did not tie up his phone line, and (d) he spent an exceedingly small amount of time reviewing the RVM.
The Sixth Circuit panel concluded that the district court erred in dismissing the plaintiff’s complaint for lack of standing, reversed its judgment, and remanded the case for further consideration. The panel first observed that the Sixth Circuit had not previously considered whether receipt of a single RVM for commercial purposes presented a concrete harm sufficient to confer standing to assert a TCPA claim. Relying on the U.S. Supreme Court’s TransUnion and Spokeo decisions, the panel stated that to determine whether the plaintiff’s alleged injury under the TCPA constituted a concrete harm, it would look to “history and tradition” and “Congress’s judgment in enacting the law at issue.”
With regard to the first prong of the standing analysis, the panel concluded that, regardless of the number of RVMs received by the plaintiff, he had alleged an intangible harm that bore a close relationship to the traditional common law tort of intrusion upon seclusion. The panel observed that “[t]he kind of harm vindicated by the intrusion-upon-seclusion tort is relatively broad” and that “at its core,” the tort is concerned with “the right to maintain a sense of solitude in one’s life and private affairs.” According to the panel, by placing an unsolicited call to the plaintiff’s phone to advertise its services, the defendant had “interject[ed] itself into [the plaintiff’s] private sphere,” thereby implicating his “common-law right to seclusion—that is, his right to be left alone from others, including by means of telephonic communications.” In the panel’s view, ”telephones are logically part of one’s private domain to which the right to be left alone extends.”
The panel labeled “inapt” the defendant’s argument that there was no invasion of privacy because there was no evidence that the plaintiff “‘was in a private place [e.g., his home] or state of seclusion that could have been intruded upon.’” The panel stated that an invasion of privacy can occur even when someone is in a public place and that “cell phones are, by their nature, private—regardless of whether they are carried in public places.” The panel also rejected the defendant’s argument that an intrusion upon seclusion occurs only when someone’s tranquility is disturbed by an audible sound like a ringing phone, or when a person’s attention is otherwise distracted from what they are doing. According to the panel, the level of disruption attendant to the defendant’s conduct was irrelevant to the question of whether the plaintiff’s alleged harm “was similar in kind to an intrusion into his private affairs.” (emphasis included). In the panel’s view, the plaintiff “suffered such a harm when [the defendant] deposited an unsolicited RVM into his phone.”
We regard to the second prong of the standing analysis required by Spokeo and TransUnion, the panel found that the defendant had caused the plaintiff “precisely the type of harm Congress sought to address through the TCPA.” The panel observed that “Congress enacted the TCPA after finding that unrestricted telemarketing practices harm consumers.” Thus, according to the panel, because the plaintiff alleged that he received an unsolicited marketing call from the defendant and that the call invaded his privacy, “[h]is injury therefore falls within the ambit of what Congress deemed to be an actionable harm when it enacted the TCPA.”
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