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.
In Salcedo v. Hanna, the Eleventh Circuit considered whether the plaintiff’s receipt of a single unsolicited text message, sent in violation of the TCPA, established a concrete injury. 936 F.3d 1162, 1165 (11th Cir. 2019). The court first distinguished cases where, for instance, an unsolicited fax caused the plaintiff’s fax machine to be unavailable for business and to use up ink and paper. The plaintiff failed to allege any particular carrier costs associated with the text message, and a cell phone’s “unavailability” during receipt of a message is entirely distinct from that of a fax machine.
Next, the court considered the legislative history of the TCPA. The Salcedo court reasoned that Congress was most concerned with the intrusive invasion of the home, which is not implicated by text messages to a cell phone. And the court rejected the argument that mere unsolicited contact itself is a concrete harm. Finally, analyzing common law invasion of privacy as analogous to the harm meant to be avoided by the TCPA, the court explained that the harm must be “substantial” and “strongly object[ionable].” (alteration in original). The mere receipt of an unsolicited text message, the court held, does not constitute an Article III injury. See also Gregorian v. FCA US LLC, 838 Fed. Appx. 390, 393-94 (11th Cir. 2020) (finding no injury from a single prerecorded voicemail).
Salcedo, however, represents a minority rule. The Fifth Circuit, for example, has expressly rejected its reasoning. In Cranor v. 5 Star Nutrition, L.L.C., another case of a single, unsolicited text message, the Fifth Circuit overturned the District Court’s dismissal for lack of Article III standing. 998 F.3d 686 (5th Cir. 2021). It reasoned that Salcedo took too narrow a view of the common law and therefore failed to appreciate the dignitary interests that have been historically protected. In addition, it found that courts must focus on the “types of harms protected at common law, not the precise point at which those harms become actionable.” Salcedo, according to the Fifth Circuit, wrongly focused on the “substantiality” of the alleged harm. Other circuits are in accord. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462-63 (7th Cir. 2020) (“A few unwanted text messages may be too minor an annoyance to be actionable at common law. But such texts nevertheless pose the same kind of harm that common law courts recognize—a concrete harm that Congress has chosen to make legally cognizable.”); Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1117 and n.5 (9th Cir. 2022) (collecting cases from the Second, Third, Fourth, Fifth, Seventh, and Eighth Circuits and finding the receipt of unsolicited telemarketing calls is a concrete injury).
In sum, district courts in the Eleventh Circuit continue to follow (as they must) Salcedo, but defendants are unlikely to prevail elsewhere arguing that the mere receipt of a text or phone call is not sufficient to confer Article III standing.