One Text Message Isn't TCPA Violation Grounds, 11th Circuit Says

A solitary, unsolicited text message isn't enough to establish standing to sue in federal court, the 11th U.S. Circuit Court of Appeals ruled Wednesday, reversing a lower court's decision in a Telephone Consumer Protection Act (TCPA) complaint. In the docket 17-14077 order, Judges Lisa Branch and Danny Reeves remanded the complaint with instructions to dismiss without prejudice, with Judge Jill Pryor concurring. A former client of a Florida attorney sued in 2016 after receiving a multimedia text message offering a discount on services. A U.S. District Court judge in Miami rejected a defense motion to dismiss the claim based on lack of standing, but allowed an interlocutory appeal. The appellate court said 11th Circuit precedent and the language of the TCPA are silent on unsolicited text message issues, but lawmaker focus on telemarketing points to a single text message being "qualitatively different from the kinds of things Congress was concerned about." The decision, penned by Branch, likened receiving a single text to having a flyer waved in one's face on a busy sidewalk -- "annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts." Pryor agreed the plaintiff had no standing to bring a TCPA claim but wrote separately to make clear the opinion was narrow and doesn't address whether a plaintiff receiving multiple unwanted texts would have standing to sue under TCPA. Class litigation defense lawyer Scott Goldsmith of Dorsey & Whitney, who wasn't involved in the Florida litigation, emailed that the 11th Circuit decision "applied a large dose of common sense." He said single-text message cases are usually filed as putative TCPA class actions and the plaintiff's bar will now likely look elsewhere, such as the 9th Circuit, where a single text message can stand up to standing scrutiny. Plaintiff's counsel didn't comment.