Can 1 Call Or Text Cause Injury Under TCPA?

In TCPA Blog’s latest Law360 column, Mike Daly, Justin Kay, and Victoria Andrews examine the differences in courts’ decisions regarding whether the receipt of a single call or text can be considered concrete harm for the purposes of constitutional standing in TCPA actions. The article first discusses state law claims that are routinely dismissed for lack of sufficient injury because the plaintiff alleged receipt of only one fax or text.  It then reviews recent TCPA claims that have been dismissed based upon similar reasoning, and compares them against those that have found that any alleged violation of the statute establishes sufficient injury to confer constitutional standing.  In doing so, the article addresses why the second line of cases employs faulty reasoning and fails to adhere to Congress’ intent and goals in enacting the TCPA:

But while those decisions purport to be consistent with the legislative intent behind the TCPA, they ignore that Congress framed its goals in the context of multiple telemarketing calls.  See, e.g., Mey, 2016 U.S. Dist. LEXIS 84972, at *11-12 (citing “Congressional findings accompanying the TCPA,” all of which, when discussing telemarketing calls, do so in the plural form).  Furthermore, in finding that allegations about “the cost of electricity to recharge the phone” or the invasion of one’s privacy sufficiently allege “tangible harm,” courts are opening the door to later attacks by defendants at class certification.  Such so-called harms are inherently individualized: if the battery was depleted, was it recharged at the cost of the called party, or at the cost of someone else (such as at an office, airport, or coffee shop); and if the called party missed the call, how did that invade his privacy or cause aggravation?  Questions like these are perhaps precisely why Congress never intended for TCPA claims to be brought as class actions, but rather as individual actions in small claims court.  See 137 Cong. Rec. S16204 (Nov. 7, 1991) (Statement of Sen. Hollings) (“[I]t is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court…. Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer.”).

The article goes on to contrast these deficiencies with the logical and legally sound trend being created by the cases that find that a single call or text does not constitute a concrete harm sufficient for constitutional standing.

Click here to read the full article.

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