Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019)

Plaintiff, a former client of a Florida law firm, received a text message to his mobile phone advertising discounted legal services of his former lawyer. He filed suit in federal court seeking to be the class representative of a putative class of former clients of the Hanna law firm who received unsolicited text messages over a four-year period from the firm. In the district court, the defendant moved to dismiss for lack of standing. The district court found that plaintiff had standing, but acknowledged that its opinion involved a “controlling question of law” and certified its order for interlocutory appeal to the Eleventh Circuit.

The Eleventh Circuit first analyzed whether the TCPA covered text messages sent to a mobile phone. The TCPA was enacted in 1991, before the rise of text messaging, and does not expressly address this scenario. But the court found persuasive that the FCC, under its TCPA rulemaking authority, had applied the statute’s regulations to text messages. Thus, the Eleventh Circuit concluded that a plaintiff could state a violation of TCPA based upon the receipt of text messages.

The Eleventh Circuit, however, concluded that the plaintiff lacked standing. The Eleventh Circuit conducted an extensive review of its precedent to determine whether a single text message was sufficient. The court relied on case law examining harm and Article III jurisdiction in the context of junk faxes, a different technology. A single fax can prevent the receiver from receiving other faxes. No such impediment exists, however, with respect to sending a text to a mobile phone. A mobile phone can receive multiple texts while conducting other activities. The court concluded: “Simply sending one text message to a private cell phone is not closely related to the severe kinds of actively intermeddling intrusions that the traditional tort contemplates.” The Eleventh Circuit thus found that plaintiff failed to allege a concrete harm sufficient for standing.