A three-judge panel in the Fifth Circuit recently ruled that the receipt of a single unsolicited text message was enough to allow a plaintiff to bring a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA). This decision is significant as it signifies a split with an Eleventh Circuit decision which reached the opposite conclusion.
The case concerned a plaintiff who received unsolicited advertising text messages from a sports nutrition and vitamin company after he provided the company with his cell phone number during a visit to one of the company’s stores. The messages persisted after Plaintiff made a request to stop receiving advertisements. The plaintiff and the company entered into a pre-suit settlement to avoid litigation. However, after the settlement was executed, Plaintiff received another marketing text from the company. Plaintiff brought a putative class action claim against the company, alleging that it sent the text message to Plaintiff’s cellular phone using an automatic telephone dialing system (ATDS) without prior express consent in violation of the TCPA. The district court dismissed Plaintiff’s claims, ruling that a single text message could not constitute an injury-in-fact sufficient to support standing for a TCPA claim. The court opined 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 Fifth Circuit panel reversed the lower court’s decision and ruled that Plaintiff had properly pled sufficient injury under the TCPA. The Fifth Circuit reasoned that Congress had enacted the TCPA to eliminate the “proliferation of intrusive, nuisance” calls from telemarketers and thus, Plaintiff had alleged “a cognizable [injury-in-fact]: nuisance arising out of an unsolicited text advertisement.” The panel rejected the Eleventh Circuit’s views—that (1) the TCPA only protects “residential” telephone subscribers from telemarketing calls made “to the home,” and (2) “the receipt of a single text message” differed from the types of nuisance and privacy intrusions that Congress was concerned about when it enacted the statute. The panel held that the “TCPA cannot be read to regulate unsolicited telemarketing only when it affects the home,” because many of the statute’s prohibitions directly apply to mobile devices designed for use outside of the home and the text of the Act enumerates instances in which ATDS calls are prohibited outside of the home (e.g., on a telephone line in a hospital patient room, or a paging service).
Further, the judges criticized the Eleventh Circuit’s conclusion in Salcedo v. Hannah, 936 F.3d 1162 (11th Cir. 2019), that there was no common law equivalent to the harm of receiving an unwanted text, and that a single text is “the kind of fleeting infraction upon personal property that tort law has resisted addressing.” Salcedo relied heavily on the Spokeo decision, a case which requires courts to focus their common law analogue inquiry on whether “an alleged intangible 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.” The Fifth Circuit panel determined that the plaintiff’s injury had a close relationship to the common law claim of “public nuisance.” At common law, a public nuisance was an “unreasonable interference with a right common to the general public,” which a sovereign would address through “criminal prosecution and abatement by way of an injunctive decree or order.” Here, the court analogized Plaintiff’s desire to use the country’s “telecommunications infrastructure without harassment” to a person attempting to use “a road or bridge without confronting a malarial pond, obnoxious noises, or disgusting odors.” Further, the court found that the text also caused personal injuries—such as draining the battery life on Plaintiff’s phone and using “minutes” allocated by Plaintiff’s cellular service provider.
The Fifth Circuit also stated that the Salcedo court misunderstood the Spokeo decision, opining that Spokeo asked courts to focus “on types of harms protected at common law, not the precise point at which those harms become actionable.” Therefore, the panel opined that Salcedo’s “focus on the substantiality of the harm in receiving a single text” only threatened to make a “difficult area of law even more unmanageable.”
The district court’s dismissal of Plaintiff’s complaint was reversed and remanded for further proceedings.