By Robert B. Barnett Jr., J.D.
A single unsolicited prerecorded message left in cell phone voicemail can constitute a claim under the Telephone Consumer Protection Act (TCPA), even where the recipient is not charged for the call, the U.S. Court of Appeals for the Third Circuit has ruled. Furthermore, the court said in reversing the lower court’s dismissal of the suit, an intangible injury, such as invasion of privacy, can constitute a concrete injury, thus giving the plaintiff standing to assert her claim, where (1) the alleged injury is the very injury the statute is intended to prevent and (2) the injury has a close relationship to the harm traditionally providing a basis for lawsuits in American courts (Susinno v. Work Out World Inc.).
Noreen Susinno filed suit in New Jersey federal court against Work Out World Inc., alleging that Work Out World violated the TCPA when it left a single unsolicited prerecorded message on her voicemail. Work Out World filed a motion to dismiss for lack of subject matter jurisdiction.
The district court held that: (1) a single solicitation was not the type of situation that Congress intended to protect people against and (2) Susinno suffered no concrete injury and, thus, lacked standing to assert her claim. As a result, the court granted the motion to dismiss for lack of subject matter jurisdiction. Susinno appealed the decision to the Third Circuit.
The TCPA makes it “unlawful for any person…to make any call…using any automatic telephone dialing system or an artificial or prerecorded device…to any telephone number…or any service for which the called party is charged for the call.” 47 U.S.C. §227(b)(1)). The Eleventh Circuit has stated that the phrase “for the which the called party is charged for the call” applies only to “any service” rather than to every other type of service previously mentioned in the statute (Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1257 (11th Cir. 2014).
The Third Circuit opined that an even more direct rebuttal existed in another TCPA subsection that gave the FCC discretion to exempt some calls that were not charged (47 U.S.C. §227(b)(2)(C)). If only calls that were charged were subject to the TCPA, the court said, Congress would not have needed to permit the FCC to exempt some that were not. The Third Circuit also rejected Work Out World’s argument that the TCPA applies only to home phone calls, and not to cell phone calls, finding that the TCPA’s emphasis on home phone calls (the law was enacted in 1991) did not preclude application to all types of calls. As a result, the court said, she had a cause of action under the TCPA for a single call even where she was not charged for the call.
Standing. In Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), the U.S. Supreme Court ruled that intangible injuries can satisfy the Article III standing requirement that injuries be concrete. Intangible injuries will be concrete, the Court said, where the alleged intangible harm is the type of harm traditionally regarded as providing a basis for American or English lawsuits. Furthermore, the Court said, Congress can always elevate intangible harms previously unrecognized to the level of a legally cognizable injury. In In re Horizon Healthcare Services Inc. Data Breach Litigation (3d Cir. 2017), the Third Circuit applied Spokeo to a claim for inadequate protection of personal information in violation of the Fair Credit Reporting Act. Even though no proof existed that the information was used to the owner’s detriment, the plaintiff had standing to bring the suit, the court said.
Applying Spokeo and Horizon to these facts, the Third Circuit concluded that her injuries were concrete, and she had standing, for two reasons. First, Congress squarely identified this injury in enacting the TCPA. These calls, Congress said, constituted an invasion of privacy. Even a single call invades her privacy, and, thus, her claim asserts the very harm that Congress sought to prevent. Second, Congress elevated privacy as a harm that, although perhaps previously inadequate in law, was, after the TCPA was enacted, of the same character as existing legally cognizable injuries. As a result, she has alleged a concrete harm and has standing to assert the claim.
The Third Circuit ruled, therefore, that the TCPA provided her with a cause of action and that the concreteness of her claim afforded her standing to assert that cause of action. The appellate court reversed the lower court’s granting of the motion to dismiss, and it remanded for further proceedings.
This article previously appeared in the Banking and Finance Law Daily.
