11th Circuit Rules Receipt of Unsolicited Text Message Does Not Establish Standing Under the TCPA

On August 28, 2019, the U.S. Court of Appeals for the Eleventh Circuit ruled that a single unsolicited text message, sent in violation of a federal statute, is not a concrete injury to establish standing in federal court.

In this case, the plaintiff was a former client of a Florida attorney and the attorney’s law firm.  The plaintiff received a text message from the attorney offering a discount on legal services.  The plaintiff filed a putative class action lawsuit against the attorney and the attorney’s law firm, alleging violations of the TCPA and sought, among other relief, statutory damages.  The attorney and the attorney’s law firm moved to dismiss the complaint for lack of standing.

The Court noted that an act of Congress that creates a statutory right to sue does not automatically create standing.  Under Article III of the U.S. Constitution, a plaintiff must satisfy various requirements to establish standing to sue in federal court, including the requirement that the plaintiff must have suffered an injury in fact.  When the concreteness of an alleged injury is difficult to recognize, the court looks to the history and the judgment of Congress for guidance.

The court found that the plaintiff’s allegations fell short of showing the type of concrete injury supported by historical practice or congressional concern.  The court explained that Congress’s concern for privacy within the sanctity of the home does not necessarily apply to text messaging because cell phones present less potential for nuisance and home intrusion.  Additionally, the court explained that although the plaintiff’s allegations bear a passing resemblance to the kind of traditional harms that have been regarded as providing a basis for a lawsuit, a single text message is too distinct both in kind and in degree from traditional harms to support finding a concrete injury.  

The court reversed the decision of the district court that the plaintiff had standing to sue and remanded with instructions to dismiss, without prejudice, the amended complaint.  The U.S. Court of Appeals for the Ninth Circuit is the only other U.S. Court of Appeals to consider this question, holding that the receipt of two unsolicited text messages constituted an injury in fact.

Notably, the Court dismissed the FCC’s interpretation of the TCPA’s application to text messaging—i.e., that it is applicable—instead relying solely on the statutory provisions themselves.  The Court dismissed the FCC’s interpretation, and any implication that Chevron deference be applied, because the Supreme Court’s directive in Spokeo was to consider the judgment of Congress, and that “congressional silence is a poor basis for extending federal jurisdiction to new types of harm.”