The decision, arising from a dispute between a consumer and digital content creators, contains helpful takeaways regarding the National Do-Not-Call Registry.
07/12/2023 12:10 P.M.
3.5 minute read
The U.S. Court of Appeals for the 9th Circuit reversed a district court’s dismissal for lack of Article III standing regarding a consumer’s Telephone Consumer Protection Act claim against digital content creators.
According to court documents, the consumer received five unsolicited text messages in 2019 when the number was listed on the National Do-Not-Call Registry (DNCR). The court of appeals held that “the owner and subscriber of a cell phone listed on the Do-Not-Call Registry has Article III standing to bring claims under the TCPA for unsolicited calls or text messages directed to its number.”
The consumer (plaintiff) alleged that digital content creators (defendants) violated the TCPA by sending unsolicited text messages to a residential phone number the plaintiff listed on the DNCR. The plaintiff was the owner and subscriber of the phone number, but she occasionally allowed her 13-year-old son to use it.
According to the plaintiff, the defendants obtained personal information from her son on or around Nov. 3, 2019. The plaintiff alleged the defendants sent five unsolicited text messages to her number within a seven-month period, between Dec. 25, 2019, and June 29, 2019, and claims that she “found those solicitation messages to be irritating, exploitative and invasive,” and that they “were precisely the type of communications she sought to avoid when she registered her number on the [DNCR].” The defendants claim that the plaintiff’s son had “opted in” to receive these communications on Nov. 3, 2019.
The plaintiff filed a lawsuit claiming she suffered an injury when her phone received these unwanted messages. The defendants moved to dismiss for failure to state a claim and for lack of standing, and the plaintiff appealed.
The district court dismissed the case, ruling that the plaintiff lacked Article III standing because she did not personally use the phone or receive the messages. However, the appeals court reversed the decision, stating that the owner and subscriber of a phone number listed on the DNCR does suffer an injury when their phone receives unsolicited text messages in violation of the TCPA.
The court clarified that the TCPA was enacted to protect consumers from the intrusion of unsolicited telemarketing, and the receipt of such messages constitutes a concrete injury-in-fact. In this case, the plaintiff alleged that she owned and subscribed to the phone number, which she listed on the DNCR to avoid invasive and irritating solicitation calls. The court determined that this allegation was sufficient to establish injury-in-fact under the TCPA.
The defendants argued that the plaintiff did not personally use the phone or receive the messages, as she provided the phone to her son. However, the court rejected this argument, stating that the relevant question for standing is whether the plaintiff suffered a cognizable injury. Requiring a heightened level of phone use as a prerequisite for standing goes against prior recognition that even one unsolicited text message constitutes the harm identified by Congress. The court emphasized that standing is not exclusive to the primary or customary user of a phone and that both the owner and the user can suffer the harm intended to be deterred by the TCPA.
Furthermore, the defendants claimed that the plaintiff’s son had solicited the text messages by signing up through an online form. However, the court clarified that determining whether such consent was provided is a question for the merits of the TCPA claim, not for establishing standing. The plaintiff’s standing to bring the TCPA claim is based on her ownership and subscription of the phone number, as well as the allegation that her phone received unsolicited text messages in violation of the TCPA.
The appeals court held that the owner and subscriber of a phone number listed on the DNCR has standing to bring claims under the TCPA for unsolicited calls or text messages directed to their number. The plaintiff’s allegation that the defendants texted a phone number she owned and subscribed to, contrary to her privacy expectations established by listing it on the registry, was sufficient to establish an injury-in-fact. The issues of whether her son consented to receive messages and the sufficiency of such consent under the TCPA are separate matters to be addressed by the district court in further proceedings.
Read more about the case, Hall v. Smosh Dot Com, here (PDF).