Combatting Unsolicited Text Messages: When Will Courts Draw a Line?

LAUREN THRONSON—Almost everyone understands the headache of spam callers dialing your cellphone, as well as the similar annoyance of receiving an unsolicited advertisement through a text message.  While Congress has tried to curb unsolicited calls to your home phone through the Telephone Consumer Protection Act (TCPA), the TCPA seems wildly underprepared for the modern era: So, where do text messages stand under the TCPA?

The TCPA was passed in 1991 and specifically targets calls to your home phone. Consequently, there is no language in the Act that applies to text messages. Granted, in 1991 the world of electronic communications looked vastly different.  In 1991, home phone usage was prolific and few people used cell phones, and even fewer cell phone users sent text messages.  Roughly 90% of homes had home phone lines, while only 3% of the American population were using cellular/ mobile phones. The Act was created for the specific purpose of home phone usage, because that was considered to be a particularly egregious form of invasion of privacy.  It is important to note, however, that since the passage of  the TCPA, Congress has amended the statute without adding text messages into the area of “restricted telemarketing.”

The 11th Circuit Court of Appeals has had occasion to examine what this Act means in the modern era and their conclusion seems to rest on whether there is a sufficient “injury.” To sue in federal court, Article III of the Constitution requires a plaintiff to show injury, traceable to conduct by the defendant, that can be redressed by a favorable decision.  Is a single text message injurious enough? According to the 11th Circuit, it is not.

In 2019, the 11th Circuit decided Salcedo v. Hanna, which held that one unsolicited text message, sent by a law firm, did not qualify as injurious.  The plaintiff alleged that he had received a text message from a firm that he used in the past, advertising 10% off of future legal fees.  Forming a class action, the plaintiff sued under the TCPA, claiming $500 per text message, with treble damages for each message.  Relying on precedent, the 11th Circuit held that one text message was not enough to meet the injurious standard required.   In a 2015 holding, the 11th Circuit held that a single fax was enough, but easily distinguished that holding.  In Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., the Court noted that a fax disrupts business and has tangible cots.  For the time that the presumably single fax machine at a business is being used to receive the unsolicited fax, that machine is, for that minute, unable to receive any legitimate business faxes.  In contrast, when receiving a text message, one is able to use other functions on a phone.  Additionally, there are legitimate, tangible costs to receiving a fax.  Presumably, one could calculate the cost of paper, toner, and ink that are used to print a fax.    The Court also noted the legislative history behind the TCPA, finding Congress was most concerned with people’s home lives being intruded upon.  The portability of cellphones and the fact that they can be silenced were also factors that the Court considered.

The concurring opinion by Justice Pryor in Salcedo concurs with the judgement only to “emphasize” that this opinion does not address whether multiple text messages would count as an injury under the TCPA. Justice Pryor appreciated that the holding was narrow, but the question still remains: how many messages is too many?

Enter the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act in December of 2019.  TRACED promised stricter penalties for “robocallers” and modifications to the TCPA which would include text messages.  The Southern District of Florida was faced with deciding what line, if any, this new Act draws in the sand for victims of unsolicited text messages.

As it turns out, that line has still not been found.  Under TRACED, three messages do not meet the standard for injury in a federal court.  According to the Southern District of Florida’s decision in Fenwick v. Orthopedic Specialty Inst., PLLC in February of 2020, two simultaneous text messages, followed by a text message confirming an “Opt Out” still did not meet the Article III requirement.  The Court described the text messages as a “brief, inconsequential annoyance” which are not related to the two motives of the TCPA: combatting intrusive invasions of the home and nuisance calls to the home from telemarketers.  So where does it stop? The Court explicitly holds even with TRACED, Salcedo is still good law.  Justice Strauss dismisses the plaintiff’s claims that time spent reading, addressing, and combatting these messages deserve a remedy.  It appears that there is still no answer as to when enough is enough.