It is fun to watch the law evolve.

In Salcedo v. Hanna the Eleventh Circuit Court of Appeal held, definitively, that receipt of a single unwanted text does not always cause Article III harm allowing a federal case. While a text might cause harm—for instance, if you fall off a ladder trying to reach your phone—in the ordinary course of things, hearing a single “chirp” is not sufficient to cause harm in the real world.

Except Salcedo actually involved two text messages—albeit received simultaneously. So it is not, and never was, sufficient to deem Salcedo a “one text” case—even though the essence of the Salcedo holding had nothing to do with the number of texts received but the qualitative nature of the Article III assessment—because more than one text was at issue there.

That was precisely the issue picked up on by the Court in  Fenwick v. Orthopedic Specialty Inst., PLLC, CASE NO. 0:19-CV-62290-RUIZ/STRAUSS, 2020 U.S. Dist. LEXIS 21566 (S.D. Fl. Feb. 4, 2020). There the Court held that not 1, not 2, but 3 unwanted text messages did not cause Article III harm and recommended dismissal of the suit. As to texts 1 and 2, the Court interpreted Salcedo as applying in the multi-text scenario. It is not enough that more than one text was received—rather some harm from the texts musts be alleged. And the Court took much comfort in the fact that Salcedo actually involved two texts, and not one. So there.

As to the third text, this was a mere ”confirmatory” text, which the Court found does not violate the TCPA at all as a substantive matter. (Not to quibble, but doesn’t the rule permitting confirmatory texts derives from the idea that initial consent is presumed to be broad enough to encompass a single text sent after a stop notification and where no initial consent was received the confirmatory text actually might violate the TCPA? Can this result also be justified on a holding that there’s a presumed consent to receive a confirmation/informational text anytime you interact with a shortcode? Hmmmm.) And since the text did not violate the law it cannot have caused Article III harm.

So there you go—you can get up to three consent-free texts in the Eleventh Circuit without consequence these days. Then again, after Glasser probably would have required dismissal on a substantive basis anyway.

Also, BONUS holding—for those of you playing along at home. The Plaintiff’s bar is now arguing that the TRACED Act ameliorates the holding of Salcedo because it specifically mentions text messages in imposing one of its reporting requirements on the FCC. This is a bad argument—TRACED does not modify the definition of “call” or otherwise impact the scope of the TCPA. It simply requires the FCC to report on certain instances of text misconduct, presumably so that Congress can consider adding texts to the statute later. In any event, the argument is quite popular with the Plaintiff’s bar—they’re usually more creative than this—but Fenwick rejects it outright:

Nothing in the cited language, which concerns the streamlining of information sharing with the Federal Communications Commission, clearly evinces a Congressional intent at odds with the Eleventh Circuit’s analysis in Salcedo.

Bingo.

Nice little case to keep in your back pocket TCPAWorld. Happy Tuesday.