“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.”

Salcedo v. Hanna, No. 17-14077, 2019 WL 4050424, at *7 (11th Cir. 2019).

In a recent ruling, the Eleventh Circuit held that plaintiff John Salcedo’s receipt of a single unsolicited text message from his former attorney, Alex Hanna, did not constitute an “injury” sufficient to establish standing under Article III. Salcedo subsequently filed a petition for rehearing en banc, asking the full Eleventh Circuit to review the issue of “[w]hether a person who receives a text message sent to a cell phone in violation of the Telephone Consumer Protection Act (TCPA) . . . suffers concrete injuries providing standing to sue under the TCPA’s right of action for the remedies provided by the Act.” If Salcedo’s petition is denied, the panel’s ruling could begin to reshape the standing analysis in the context of TCPA claims brought based on unsolicited text messages.

The Eleventh Circuit panel’s analysis in Salcedo v. Hanna applies the Supreme Court’s tripartite framework for determining standing, focusing in particular on the “injury in fact” requirement in Lujan and Spokeo. The panel’s reasoning was remarkably practical; in reaching its ultimate determination, the panel essentially “debunked” Salcedo’s analogy to junk faxes simply by pointing out key differences in the context of text messages. For example, the panel contrasted the “tangible costs” associated with receiving junk faxes (which do establish an injury), with the “intangible costs” of receiving a text message. See Salcedo, at *3 (“A fax message consumes the receiving device entirely, while a text message consumes the receiving device not at all. . . . A fax machine’s inability to receive another message while processing a junk fax has no analogy with cell phones and text messaging.”).

The panel acknowledged that a single alleged violation of the TCPA is, in some cases, sufficient to confer Article III standing, but observed that Salcedo had relied on recycling junk fax allegations without adding specific facts to explain the applicability of these allegations to the text message he received. Salcedo failed to allege that Hanna’s text cost him any money, that he suffered a concrete loss of time as a result of receiving the text, or that he suffered any particular loss of opportunity while the text was transmitted to his phone. See Salcedo, at *4 (“We are entitled to look past this conclusory recitation to the actual factual substance of Salcedo’s allegations.”) (Citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

The panel also expressly acknowledged its departure from the Ninth Circuit’s decision in Van Patten v. Vertical Fitness Group, LLC; however, “in the absence of controlling authority,” the panel based its decision on the history and judgment of Congress, as instructed by the Supreme Court in Spokeo. First, the panel noted that the TCPA is “completely silent on the subject of unsolicited text messages.” See Salcedo, at *4 (“We first note what Congress has said in the TCPA’s provisions and findings about harms from telemarketing via text message generally: nothing.”) (Emphasis in original). Moreover, although text messaging did not exist in its current form when the TCPA was enacted in 1991, Congress has amended the statute several times since then without any explicit mention of text messaging. At most, Congress’s silence can be deemed “tacit approval” of the FCC’s extension of the TCPA to text messages.

Similarly, the panel discussed Congress’s legislative findings about telemarketing, and found that the concerns for privacy “within the sanctity of the home” that underlie the provisions of the TCPA do not necessarily apply to text messaging. See Salcedo, at *4 (“By contrast, cell phones are often taken outside of the home and often have their ringers silenced, presenting less potential for nuisance and home intrusion.”). The practical differences between text messaging and other forms of communication governed by the TCPA, as well as separation of powers issues, led the panel to disagree with the Van Patten decision as a “broad overgeneralization of the judgment of Congress.” See Salcedo, at *5 (“Spokeo instructs us to consider the judgment of Congress about the alleged harm, not to imagine what Congress might say about a harm it has not actually addressed.”) (Emphasis added).

Second, the panel distinguished text messages from intangible harms with close relationships to traditionally redressable harms, e.g., intrusion upon seclusion, trespass, and nuisance. The receipt of a text message is fundamentally different from these other intangible harms in several respects, such as its “isolated, momentary, and ephemeral” nature, which falls far short of the severity of invasion necessary to support a tort claim. See Salcedo, at *7 (“The Ninth Circuit’s one-sentence review of history [in Van Patten] simply asserted. ‘. . . the right of privacy is recognized by most states. But as we have more thoroughly explained, an examination of those torts [intrusion upon seclusion, nuisance, etc.] reveals significant differences in the kind and degree of harm they contemplate providing redress for.”).

Finally, the panel underlined that its decision was not “attempting to measure how small or large Salcedo’s alleged injury is”; rather, based on a qualitative assessment, this is not the kind of concrete harm that constitutes an injury in fact. See Salcedo, at *8 (“These precedents strongly suggest that concrete harm from wasted time requires, at the very least, more than a few seconds. And on this point the judgment of Congress sheds a final ray of light. The TCPA instructs the FCC to establish telemarking standards that include releasing the party’s line within five seconds of a hang-up, demonstrating that, on the margin, Congress does not view tying up a phone line for five seconds as a serious intrusion.”).

Salcedo’s petition for rehearing en banc is grounded primarily on conflicting decisions in other circuit courts—including, but not limited to, the Ninth Circuit’s decision in Van Patten—and the appropriate import of privacy-related concerns, but it remains unclear whether the petition will be granted. For now, at least, the Eleventh Circuit’s ruling sets a lower limit on the “harm” TCPA plaintiffs must allege in order to meet the threshold for Article III standing, which may offer some limited protection from class and other lawsuits based on one-off unsolicited communications.

We will post any updates as they become available.