September 9, 2019
The United States Court of Appeals for the Eleventh Circuit (the “Court”) recently issued a ruling declaring that the receipt of a single unsolicited text message advertisement is insufficient to permit the text recipient to sue in federal court for alleged violation of the Telephone Consumer Protection Act (“TCPA”). The TCPA law decision is one that is likely to have significant ripple effects across the country.
What was the Court’s reasoning and what are the broader TCPA law implications?
In what could be a watershed TCPA law decision for the marketing industry, the Court reached its decision by distinguishing between the receipt of a single text message from that of: 1) a single fax advertisement; and 2) an unsolicited pre-recorded telemarketing call to one’s residential phone line. In contrast to the latter two forms of unsolicited advertising (the receipt of even one of which the Court acknowledged as being adequately intrusive enough to permit the recipient to sue in federal court), the Court concluded that the same cannot be said of a solitary unsolicited text message. The Court reasoned that the allegations concerning receipt of a single text message, complaining of 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 waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.” According to the Court, such a complaint does not implicate the interests Congress intended to protect when enacting the TCPA.
The Court took pains to note that the appeals court for the Ninth Circuit had very recently come to the opposite conclusion on this very issue. There, the Ninth Circuit ruled that receipt of even a single unsolicited text message is enough to confer constitutional standing on a would-be plaintiff. To distinguish its conclusion from that of the Ninth Circuit, the Court noted that the Ninth Circuit “stopped short of examining whether isolated text messages not received at home come within the judgment of Congress.” Instead, while the Ninth Circuit quickly “concluded that Congress identified unsolicited contact as a concrete harm,” the Court disagreed with that “broad overgeneralization of the judgment of Congress.” To the Court, it was of paramount importance that a fleeting single text message can be received outside of the home, without disturbing the “domestic peace” that might otherwise be infringed upon by a single call to a residential landline during dinner.
Defending Lawsuits Amid Changes in TCPA Law
Text messaging is one of the most common forms of communication today. As a result, it has unfortunately become more commonplace for text message marketers to find themselves on the wrong side of TCPA class action lawsuits in which the named plaintiff seeks to represent a nationwide class despite his/her having received only a single text message. Against that backdrop, this case has the potential to represent a powerful tool to defend against such efforts. It is no small matter that a federal court of appeals has ruled that the receipt of one text message alone may not be enough to allow a plaintiff to assert a TCPA claim in federal court. Moreover, split opinions from sister circuit courts of appeals (such as the one that now exists between the Ninth and Eleventh Circuits, as highlighted in this decision), typically serve as a prelude to review by the United States Supreme Court. Consequently, it will be important for industry observers to maintain a watchful eye on whether the Supreme Court decides to hear a case on this issue. Until such time, it remains critical that text message marketing practices and procedures are regularly examined by experienced counsel in order to avoid potentially disastrous TCPA law consequences.
If you need to review your text message marketing practices and procedures or if you are the subject of a TCPA law-related lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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