The District Court for the Southern District of Florida recently dismissed a TCPA lawsuit for lack of Article III standing, holding that five unsolicited text messages did not constitute a concrete injury. Muccio v. Global Motivation, Inc., __ F. Supp. 3d __, 2022 WL 17969922 (S.D. Fla. Dec. 27, 2022). In so doing, the court applied the Eleventh Circuit precedent in Salcedo v. Hanna, which held that a single, unsolicited text message did not itself constitute a concrete injury.
In Muccio, the plaintiffs alleged receiving five unsolicited text messages from defendant Global Motivation, Inc. The complaint alleged that the text messages did not include the ability to opt-out of future messaging and failed to identify the name of the sender or include the sender’s contact information. The court decided the motion on Article III standing. The mere existence of a statutory right, the court explained, even if violated, does not excuse the need for a plaintiff to allege a concrete injury. The complaint, however, merely sought to redress “inconvenience, invasion of privacy, annoyance, and violation of their statutory rights.” Applying the rule set forth in Salcedo v. Hanna, the Muccio court dismissed the suit without prejudice for failure to allege a concrete injury.
The Telephone Consumer Protection Act of 1991 (TCPA) restricts many types of calls to residential and wireless telephone numbers if they are made without the prior express consent of the called party or a statutory exemption applies, but the statute authorizes the FCC to exempt certain calls from these restrictions. In 2020, the FCC in its TCPA Exemptions Order adopted measures to implement the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The TRACED Act required that the FCC ensure that any exemption to TCPA prior express consent that the FCC grants under section 227(b)(2)(B) or (C) of the Communications Act, allowing callers to make artificial voice, prerecorded voice, or autodialed calls without prior consent, include certain conditions. Specifically section 8(a) of the TRACED Act requires that any exemption contain requirements with respect to: “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.” The FCC in 2020 determined it would limit the number of exempted calls that can be made to residential phone lines; require that callers making exempt calls allow consumers to opt out of receiving future exempt calls; and codify existing FCC exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers.