The TCPAWorld waters have been even choppier than usual as a series of Appellate Court cases have come out the last few weeks churning things up.

Let’s do a quick review.

First, on July 24, 2023 the Eleventh Circuit Court of Appeals issued an en banc decision overturning previous 11th Circuit authority that receipt of a single text messages does not cause harm under the TCPA. Under the new ruling in Drazen v. Pinto receipt of a single unwanted text message is sufficient to give rise to Article II Standing because it causes the same “kind” of harm at issue in traditional common law torts– even if not to the same “degree.” This means even a single unwanted text can–but perhaps will not always–cause harm where a harm “is smaller in degree rather than entirely absent.”

Then on July 25, 2023 the Seventh Circuit Court of Appeals seemingly threw the Hobbs Act out the window in refusing to afford deference to an FCC ruling expanding the reach of the TCPA in fax class actions. In Ambassador v. Elanco the Court declined to apply an FCC ruling that looks at the pretext of a fax in determining whether it is marketing–only the words on the page matter. This is a remarkable ruling because–absent narrow circumstances–courts usually defer to the FCC in applying the TCPA.

Next on August 8, 2023, and perhaps most impactfully, the Ninth Circuit Court of Appeals ruled in Trim v. Rewards Zone that text messages are NOT prerecorded voice calls that automatically trigger the TCPA. This was a critical ruling that preserved the status quo. But the ruling also strongly suggested that MMS messages containing video or audio format content would be treated as prerecorded voice messages. Uh oh.

Most recently, the Seventh Circuit Court of Appeals took an expansive view of marketing in a TCPA fax class action. The ruling in Smith v. First Hospital Labs opens up a new avenue to pursue marketers who offer to enroll providers in subscription or referral models and also throws shade on lead generation. Still, though, the appellate court reminds TCPA Plaintiff’s lawyers not to view he ruling “opportunistically.” Worth keeping an eye on.

We’ll break down all of these cases on our next edition of Deserve to Win. For now, though don’t miss our great interview with Abbas Kazerounian in Episode 14: