On October 30, 2019, the United States Court of Appeals for the Eleventh Circuit declined to rehear its prior ruling that an individual who had received just one unsolicited text message did not have standing to pursue a claim under the Telephone Consumer Protection Act, 47 U.S.C § 227 et seq.
In August 2016, John Salcedo received a single, unsolicited telemarketing text message from the Law Offices of Alex Hanna, P.A. The text message was sent to Alex Hanna’s former clients using automatic telephone dialing equipment. In October 2016, Plaintiff filed a complaint — later amended in December 2016 — alleging that Alex Hanna and the Law Offices of Alex Hanna, P.A. had violated the TCPA by sending the text message. Salcedo alleged that receiving the text message “caused Plaintiff to waste his time answering or otherwise addressing the message. While doing so, both Plaintiff and his cellular phone were unavailable for otherwise legitimate pursuits,” and that the message “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”
On June 14, 2017, the United States District Court for the Southern District of Florida denied Hanna’s motion to dismiss, finding that the plaintiff’s allegations were sufficient to state a claim and that he had standing to bring the claim under the TCPA. However, the court permitted an interlocutory appeal of its order, noting that it “involve[d] a controlling question of law as to which there is substantial ground for difference of opinion,” and the case was stayed pending the interlocutory appeal.
On August 28, 2019, the Eleventh Circuit reversed the district court’s decision, finding that, although Salcedo had stated a claim, he did not have standing. The court remanded to the district court with instructions to dismiss the case without prejudice. The court looked to precedent, congressional intent, and history to conclude that Salcedo’s alleged injuries, though perhaps annoyances, did not amount to a “concrete injury” as required by Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) and Article III of the Constitution. Looking to prior Circuit precedent though, the court suggested that the outcome might have been different if Salcedo had alleged (i) tangible costs, such as the cost of receiving the text message, (ii) intangible costs in concrete terms even, for example, by asserting that receiving the text message had cost him one minute of his time, as opposed to having generally wasted his time, or (iii) a veritable opportunity cost — the court presumed that Salcedo’s allegations regarding opportunity cost must have been erroneously carried over from language in the court’s prior decision regarding a fax, since receiving a text message cannot be said to tie up a phone in the same way that receiving a fax may tie up the machine from otherwise being used during receipt.
The Eleventh Circuit denied the petition for rehearing without explanation, leaving the August 28 decision completely intact.