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Appeals Court Rules One Text Message Not Enough to Support TCPA Claim

Decision Means That Issue of TCPA Standing Is Likely Headed To Supreme Court

In Salcedo v. Hanna (decided on August 28, 2019), the Eleventh Circuit issued a TCPA-related ruling that will almost certainly be heard by the United States Supreme Court. As readers of this blog know, the Telephone Consumer Protection Act (“TCPA”) allows people who receive unwanted robo-calls, mass text messages or unsolicited faxes to collect $500 per violation. But the Salcedo ruling created an exception for a plaintiff who receives only a single unwanted text message. One text, says the ruling, does not cause a serious-enough injury to permit the lawsuit to proceed.

The Eleventh Circuit considered a case where Salcedo, a former client of a Florida attorney, received a text message from the attorney that offered a ten percent discount on future legal services. Salcedo’s response was to file a class-action lawsuit against the law firm in district court alleging that the text violated the TCPA. The law firm moved to dismiss the lawsuit on the basis that Salcedo lacked standing.  In general, every plaintiff must show that he, she or it suffered some type of injury in order to have the required standing to maintain a lawsuit. 

According to the law firm, Salcedo’s receipt of a single text message did not create an injury substantial enough to maintain a lawsuit.  The district court denied the motion to dismiss, siding with Salcedo. However, the law firm immediately appealed to the Eleventh Circuit, and that court decided to hear the appeal.

To establish standing, a plaintiff’s injury must be concrete, that is, it must actually exist as opposed to being hypothetical or speculative.  This is not a high standard, because, in the words of the Eleventh Circuit, a concrete injury can be as little as an “identifiable trifle.”

At oral argument, Salcedo compared receipt of an unwanted text message to an unsolicited fax that consumes a minute of the fax machine’s time on an unsolicited advertisement. But the Eleventh Circuit found that the one text message did not even meet the low “identifiable trifle” standard. It reversed the district court and instructed it to dismiss the lawsuit.

The Eleventh Circuit’s rationale behind the decision was as follows: “receiving a fax message is qualitatively different from receiving a text message. A fax message consumes the receiving device entirely, while a text message consumes the receiving device not at all. A cell phone user can continue to use all of the device’s functions, including receiving other messages, while it is receiving a text message… A fax machine’s inability to receive another message while processing a junk fax has no analogy with cell phones and text messaging.”

The dismissal was without prejudice, which means that Salcedo will have an opportunity to refile the lawsuit and make new allegations about the injury he suffered when he received the text message.

TAKEAWAY: The decision is obviously a victory for alleged TCPA violators, particularly those who may have sent a single text message by mistake. However, different circuit courts (including the Second and Ninth Circuits) have reached opposite conclusions, and ruled that one text is indeed enough to support a lawsuit because, in their view, the very purpose of the TCPA is to protect consumers from receiving unwanted solicitations.  The Supreme Court is almost certain to resolve the split in the rulings in the next year or two.

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