Nathan Vanderhorst | Protecting Consumers From Autodials: Can One Text Be a Nuisance?

BACKGROUND

To bring a suit in federal court a plaintiff must have suffered a “concrete and particularized”, as opposed to a speculative, injury. While Congress can enact laws that create statutory injuries that permit citizens to sue, federal courts may still decide that an aggrieved citizen, bringing such a suit, does not have standing as required by Article III of the Constitution. How severe does an injury need to be for it to be “concrete and particular” enough to justify standing?

What about a single text message? The Telephone Consumer Protection Act (TCPA) was passed in 1991 to regulate the emerging practice of telemarketing, in which an automatic dialing system or prerecorded voice makes automatic calls to consumers to market products or services. The TCPA also regulates other forms of electronic communication, such as through text messaging and faxing. 

ISSUE

Does a defendant have Article III standing under the Telephone Consumer Protection Act even if the alleged injury is a single text message?

THE SPLIT

Circuit courts generally agree that telemarketing text messages are enough to allow a person to sue under the TCPA, but there has emerged a split in judgment on whether a single text message is enough to give rise to a right of action. 

The Fifth Circuit

Lucas Cranor made a purchase at an Austin, TX location of 5 Star Nutrition, and provided his cell phone number to the store while there. Unfortunately, 5 Star used his phone number to send him a string of unsolicited text messages. Cranor filed a lawsuit against 5 Star which was settled out of court. Nonetheless, after the settlement Cranor received a text message from 5 Star promoting a sale. Cranor took his case to court this time and filed a suit against the company in the Western District of Texas, alleging that 5 Star violated the TCPA by sending him a text message using an automatic dialing system without his consent. 

 The District Court dismissed Cranor’s claim for lack of standing. While the court conceded that text messages can give rise to a claim under the TCPA, it determined that “the single text message here does not constitute [an] injury in fact [because] …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 does.” Cranor appealed to the Fifth Circuit.

The Fifth Circuit found that Cranor does indeed have standing, and that Congress is “well positioned” to identify harms that meet standing requirements under Article III. The TCPA was passed after consumers, outraged over new barrages of unwanted calls, called on Congress to address the problem. The circuit court recognized that unwanted solicitations by phone can be a nuisance, which is a viable claim under the common law, and an invasion of privacy. Cranor indeed brought this action only for one unsolicited text message, but that text was the very harm that Congress was seeking to redress. The circuit court then remanded the case back to the district court for proceedings. 

The Second, Third, Seventh, and Ninth Circuits

Other circuit courts have heard similar claims. The ninth, seventh, and second circuits have all heard cases where text messages were alleged to be in violation of the TCPA, and all agreed that spam texts are the very harm the statute tries to prevent. The third circuit decided that a single phone call was enough to create standing under the TCPA.

The Eleventh Circuit

The Eleventh Circuit does not agree that a single text is enough to create standing. The court looked to the congressional record to determine Congress’s legislative intent in creating a right of action under the TCPA, conceding that the TCPA does indeed appear to create a private right of action for certain kinds of text messages. However, Congress has been silent on the issue of text messages as applied to the TCPA. Furthermore, the congressional record shows that one of the major concerns in passing the law was invasion of privacy “within the home”. 

The Eleventh Circuit reasons that in the absence of clear language from Congress indicating that text messages fall under the ambit of the TCPA, and because cell phones are typically used outside of the home, Congress’ objective of protecting the privacy of the home is not necessarily violated through text messages. The court does not go so far as to rule on whether text messages are categorically excluded from causing a right of action under the TCPA but chooses to be cautious in light of the lack of evidence of Congressional intent against such an exclusion. 

Moreover, a single text message does not rise to the level of harm typically required of nuisance. “The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waved in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.” 

LOOKING FORWARD

The outcome of this circuit split is uncertain. The case in Cranor was remanded to the state court, so it might be a while before any decision on the merits reaches back up to the appellate courts. On the other hand, 5 Star may attempt an interlocutory appeal on the issue of standing, since, if the Supreme Court were to find that Cranor didn’t have Article III standing, the need for a district court hearing would be obviated. Furthermore, there have been no proceedings under Salcedo since the decision by the Eleventh Circuit, so that decision does not appear to be heading toward appeal.

Nonetheless, the issue of text message telemarketing has already wound its way up to several of the circuit courts. The problem is common and is likely to arise again. Whether the Supreme Court will ever grant certiorari should a circuit court decision be appealed is unclear. The issue is not high profile and does not have a defined ideological stake (the judges in Cranor and Salcedo were both appointed by Trump and presumably are both conservative). In the meantime, the circuit split will endure, leaving uncertainty on the scope of this issue in consumer protection.