The court, in Cranor v. 5
The Fifth Circuit's decision stands in stark contrast with two recent decisions by the
The Fifth Circuit thus has now weighed in on the growing circuit split on TCPA standing now brewing between various federal circuits. Years before the Eleventh Circuit's Salcedo ruling, the
Given the deepening division on TCPA standing, and the direct contrast between two federal circuit courts' analysis regarding text messaging in particular, this article outlines the differing approaches of the Fifth and Eleventh Circuits to the text messaging injury requirements. Businesses must be aware of this deepening rift.
The Fifth Circuit's Decision in Cranor
In
The federal district court found that the plaintiff lacked standing and dismissed.6 The lower court noted that "text messages are sufficient forms of injury-in-fact in actions arising out of the [TCPA]," but the single text message at issue did not "constitute [an] injury in fact." On de novo review, the Fifth Circuit held that the injury-in-fact requirement was satisfied by "nuisance arising out of an unsolicited text advertisement." The Fifth Circuit looked first to "
The Fifth and Eleventh Circuits' Differing Interpretations of Injury and the TCPA
The Eleventh Circuit in Salcedo v. Hanna looked at
In contrast, the Fifth Circuit opined that "the text of the TCPA shows
The Fifth and Eleventh Circuit decisions disagreed on two main points: (i) Congressional intent and
Congressional Intent and FCC Guidance as to Text Messaging
Given that smart phones and text messaging did not exist in 1991 when the TCPA was enacted, there is no direct discussion in the statute or the legislative history regarding any potential harm caused by a text message. However, in the opinion of the Fifth Circuit, the TCPA's statutory language did not only concern privacy violations of a residential consumer's home caused by unwanted telemarketing. The court stated that if the TCPA "only prohibited nuisances in the home, then it would make little sense to prohibit telemarking to mobile devices designed for use outside the home." In support, the Fifth Circuit took note of the TCPA's concern with "nuisance and invasion of privacy" in various "non-residential contexts," including emergency phone lines, hospital guest rooms, and paging services.
The Eleventh Circuit, in contrast, concluded in Salcedo that
The Salcedo court noted that "[t]he TCPA is completely silent on the subject of unsolicited text messages," and pointed out that "it is only through the rulemaking authority of the
In addition to disagreeing about Congressional intent, the two circuit courts also disagreed whether the
In contrast, the Eleventh Circuit held: "[a]ny possible deference to the
Whether Allegations of a TCPA Violation Are Sufficient to Establish Injury
The two circuit courts also took widely different views of whether an individual text message could cause actual harm required for Article III standing, when considering the common law of privacy. When analyzing the injury-in-fact requirement after looking to historical common law harms, the Eleventh Circuit in Salcedo stated that "[h]istory shows that [plaintiff's] allegation is precisely the kind of fleeting infraction upon personal property that tort law has resisted addressing." Considering the inconsequential annoyance of glancing down at a smartphone to see a text message, the Salcedo court found no actual injury had been asserted from receipt of a single text:
In sum, we find that history and the judgment of
The Eleventh Circuit thus found a lack of standing for plaintiff Salcedo to proceed, but did note that its standing analysis was qualitative and not quantitative, and would require a close look at a plaintiff's allegations "in light of the statute, our precedent, history, and the judgment of
The Fifth Circuit reached the opposite conclusion on standing when assessing plaintiff Cranor's allegations at the motion to dismiss stage, finding that allegations of a TCPA violation stemming from a single text message had a "close relationship" to the common law harm of public nuisance. Cranor disagreed with the Eleventh Circuit's holding for two reasons:
- First, the Fifth Circuit opined that the Eleventh Circuit's view of common law trespass to chattels in Salcedo was "substantially narrower" than the scope of that action at common law. The Fifth Circuit looked to treatises, including the Restatement (Second) of Torts, and case law, and concluded that the Eleventh Circuit in Salcedo "mistakes the twentieth-century Restatement for the eighteenth-century common law."
- Second, the Fifth Circuit disagreed with the Eleventh Circuit's "focus on the substantiality of the harm in receiving a single text," and instead focused on whether "an alleged intangible harm has a close relationship to a harm that has traditionally" provided a basis for a claim.
Cranor found that plaintiff wanted to use the "telecommunications infrastructure without harassment," which it believed was similar "to someone who wants to use another piece of infrastructure like a road or bridge without confronting a malarial pond, obnoxious noises, or disgusting odors." The court further analogized that defendant in this case - a defendant that was highlighted in the factual history section to have sent a further text message after receiving and resolving complaints tied to earlier unwanted text messages - was similar to someone "who illegally emits pollution or diseases that damages members of the public."
Finally, the Fifth Circuit also noted that plaintiff had alleged he could not avoid "robodialed advertisements," and that the text message "deplet[ed] the battery life" on his cellular phone and used "minutes allocated to [him] by his cellular telephone service provider." The court found that these allegations were not only of an "unreasonable interference with a right common to the public," but were also allegations of "personal injuries" that separate him from the public at large. The Fifth Circuit thus rejected the Eleventh Circuit's analysis that the receipt of a single text message is an inconsequential annoyance by itself that does not rise to the level of actual harm
What Does It Mean?
By explicitly rejecting both the textual, legislative history, and common law analyses made by the Eleventh Circuit in Salcedo, the Fifth Circuit has demarcated the growing split between the two approaches to TCPA standing in the context of a single unwanted text message. Businesses that had breathed a sigh of relief after Salcedo held that a single text message was unlikely to support a TCPA class action claim in federal court may now find themselves in a different venue.
Moreover, given the starkly different approaches of these two courts, this debate over Article III standing could further develop into circuit split creating different standards, and different risk profiles, depending on where an action is filed. Absent an about-face by one of the circuits, we can expect that other circuits will start to line up on either side of the issue until the matter is resolved by statutory revision or the
Footnotes
1 Cranor v. 5
2 Salcedo v. Hanna, 936 F.3d 1162, 1165 (11th Cir. 2019).
3 Grigorian v.
4 Van Patten v.
5 Leyse v.
6 Cranor v. 5
Originally Published by The Computer & Internet Lawyer
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