The Eleventh Circuit created a circuit split last month when it issued its decision in Salcedo v. Hanna, No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019). In that case, the court determined – contrary to Ninth Circuit precedent – that the receipt of one unsolicited text message does not create an injury in fact sufficient to create Article III standing under the TCPA. The implications of this holding are far reaching because it precludes putative TCPA class actions that are brought on the shoulders of a class representative who received only one, and maybe even more than one, text message on his or her cellphone.

Article III Standing

Article III of the US Constitution vests the federal courts with the power to hear “cases” and “controversies.” The “doctrine of standing” assists the courts in determining whether matters before them qualify as cases or controversies. Id. at *4-*5. Under that doctrine, a plaintiff bears the burden of establishing (1) that he suffered an injury in fact, (2) that his injury is fairly traceable to the defendant’s conduct, and (3) that his injury is likely to be redressed by a favorable judicial decision. Id. at *5. The first element – injury in fact – is the “foremost” of the three and was the focus of the court’s decision in Salcedo. Id.

In order for an injury to be one “in fact” it must be both concrete and particularized. Id. at *6. For an injury to be “concrete” “it must actually exist” and cannot be “hypothetical or speculative.” Id. This requirement “is a hard floor of Article III jurisdiction that cannot be removed by statute.” Id. Thus, although Congress is permitted to create private rights of action by statute, as it has done with the TCPA, plaintiffs are still obligated to show a concrete injury. Id. Particularization was not at issue in Salcedo because it was undisputed that the plaintiff’s allegations were “of a personal and individual nature.” Id. at *6 & n.3. Thus, the thrust of the court’s analysis was on whether the harm that the plaintiff alleged from the receipt of one unsolicited text message was concrete.

Salcedo’s Characterization of the Harm That He Suffered

Like many putative TCPA plaintiffs, Salcedo alleged that his receipt of one unsolicited text message caused him “to waste his time answering or otherwise addressing the message” and that “[w]hile doing so, both [he] and his cellular phone were unavailable for otherwise legitimate pursuits.” Id. at *7. He also alleged that the unsolicited message invaded his “privacy and right to enjoy the full utility of his cellular device.” Id. Notably, Salcedo did not allege that the challenged text message cost him money. Id. at *8. Nor did he allege that he lost any particular opportunities as a result of the time he spent dealing with the text. Id. at *9. Nor did he allege that he received the message when he was at home. Id. at *13.

The Court’s Analysis

In order to determine if Salcedo’s allegations of harm satisfied the concrete injury requirements of Article III standing, the court first looked to its own precedent. However, since the Eleventh Circuit’s precedent involved the receipt of unsolicited faxes, the court found that it was so “qualitatively different” from the receipt of an unsolicited text message that it was incomparable. Id. at *7. Indeed, in the fax machine cases, the plaintiffs had alleged a concrete injury despite the receipt of only one unsolicited fax because receipt of a fax costs money in paper and ink and during the time that the machine is receiving the unsolicited fax, it is literally incapable of receiving other legitimate messages. Id. at *8-9. That interruption often lasted a full minute or more. Id. In contrast, Salcedo had not alleged that receipt of the text had cost him any money and he could not allege that the receipt of a text message “consumed” his phone in the way that the receipt of a fax consumes a fax machine. Id. Indeed, a cell phone can receive multiple messages at a time and can do so while the user is enjoying other functions of the phone. Id. Moreover, although Salcedo alleged that the text had wasted his time, he did not allege that he lost any particular opportunity such as that which results when a fax machine is unable to receive other faxes. Id.

Failing to find a comparable analogy in its own precedent, the Eleventh Circuit turned to the judgment of Congress. Id. at *10. But, Congress has been silent on the applicability of the TCPA to text messages; and it was only through the FCC’s own rulemaking authority that the TCPA has been so applied. Id. While Congress’s silence on the issue since then could be read as “tacit approval,” when it implemented the TCPA, Congress was concerned about telemarketers invading the “privacy within the sanctity of the home;” that concern is much less in play when text messages are sent to a portable cell phone that has its ringer silenced. Id. at 10, 13. Thus, the Eleventh Circuit found that the judgment of Congress did not provide “support for finding that Salcedo’s allegations state[d] a concrete injury in fact.” Id. at *14.

Notably, that is where the Ninth Circuit differed. In Van Patten v. Vertical Fitness Group, LLC, the Ninth Circuit concluded that because Congress intended to “protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements,” it had effectively “identified unsolicited contact as a concrete harm.” 847 F.3d 1037, 1043 (9th Cir. 2017) (holding that the receipt of two unsolicited text messages constituted an injury in fact). The Eleventh Circuit opined that this was a “broad overgeneralization” of Congress’s stated intent and criticized the Ninth Circuit for “stopp[ing] short of examining whether isolated text messages not received at home come within the judgment of Congress.” Salcedo, 2019 U.S. App. LEXIS 25967, at *14.

Unsatisfied with the judgment of Congress and its sister court’s analysis of the same, the Eleventh Circuit turned to “history for guidance” since “the case or controversy requirement of Article III is ‘grounded in historical practice.’” Id. In particular the court ran through the elements necessary to establish a number of common law torts – such as invasion of privacy, intrusion upon seclusion, nuisance, trespass, and conversion – to determine whether the type of harm that Salcedo alleged had “traditionally been regarded as providing a basis for a lawsuit.” Id. The court found that the alleged harm fell far short of that required to establish any of those claims in both kind and degree, while noting that Salcedo’s harm was “momentary” and “ephemeral.” Id. at 15. The court also took the Ninth Circuit to task once again, this time for its “one-sentence review of history” that failed to analyze whether the “harm they contemplate[d] providing redress for” bore a “close relationship” to the harm necessary to establish the various privacy torts. Id. at 18.

Having run through its own precedent, Ninth Circuit precedent, the judgment of Congress, and historical guidance, the Eleventh Circuit concluded that none supported “a finding of concrete injury in Salcedo’s allegations.” Id. Salcedo simply had not “alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone.” Id. at *18-19. Rather, “Salcedo’s allegations of a brief, inconsequential annoyance [we]re categorically distinct from those kinds of real but intangible harms. The chirp, buzz, or blink of a cellphone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.” Id. at *19. The court was quick to clarify, however, that it was the nature of the intrusion that informed its reasoning and that there was no minimum number of text messages “required to show injury.” Id. Nevertheless, while wasting one’s time can amount to creating a concrete harm, wasting five seconds or less cannot. Id. at *20.

Conclusion

In sum, the Eleventh Circuit engaged in a highly detailed analysis of the TCPA, Congressional intent, and historical precedent in concluding that the receipt of one text message and the ephemeral harm alleged therefrom does not create Article III standing. And it took the Ninth Circuit to task while doing so, creating a circuit split in the process.