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How Harmful Can One Text Be?

20 Jun, 2017 By: Stephen R. Freeland, Jeffrey D. Knowles, Venable LLP’s Advertising


How much liability can one call or text create for a telemarketer? The real answer is that it may depend on where your case is filed. While some courts have said that a single call may be enough to trigger liability, two recent decisions in New Jersey show that sometimes one call is not enough. (Nor are three, at least under the factual scenarios alleged in those cases.)

In Zemel v. CSC Holdings LLC, the U.S. District Court for the District of New Jersey held that three text messages allegedly sent to the plaintiff using an autodialer without his prior express consent were insufficient to establish standing under the Telephone Consumer Protection Act (TCPA). In that case, the defendant allegedly sent an autodialed text message to the plaintiff indicating that his mobile number was recently added to a particular service and inviting him to “Send STOP to opt out, HELP for info.”

The plaintiff initially responded “HELP” and received a response directing him to visit the defendant’s website for information. He then texted “STOP,” and received a response asking him to identify the type of messages – service alerts or appointment alerts – that he no longer wished to receive.

In his complaint, the plaintiff alleged that the three text messages violated the TCPA and caused him to suffer “actual harm, including aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited text messages.”

In granting the defendant’s motion to dismiss, the court concluded that the three messages, even if sent in violation of the TCPA, were insufficient – by themselves – to satisfy the injury-in-fact requirement for standing to sue in federal court. The court noted that “[t]he Third Circuit has yet to apply Spokeo [v. Robins] to a TCPA case, and has yet to decide whether a violation of the TCPA means a plaintiff automatically satisfies the injury-in-fact requirement or whether a violation in addition to a conclusory allegation of an injury satisfies the injury-in-fact requirement.” The court further observed that “[t]here is a split among other courts” on this issue.

Nonetheless, the court looked to two of its own decisions to conclude that “Spokeo requires a plaintiff to have suffered ‘an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.’“

The three text messages in question did not satisfy this test.

First, the plaintiff failed to plead facts showing any harm “beyond a mere statutory violation.” Indeed, the court found, such allegations were “missing.”

Second, the plaintiff’s claims of nuisance and invasion of privacy also were insufficient because, according to the court, he “failed to demonstrate how three text messages, one which was initiated by [him] when he responded ‘HELP’ to the initial text message, are a nuisance or an invasion of his privacy.”

Finally, the court looked to the purpose of the TCPA, and concluded that plaintiff’s claims did not further that purpose. “Congress enacted the TCPA ‘to deal with an increasingly common nuisance-telemarketing’ and ‘to control residential telemarketing practices,’“ the court wrote. Because the plaintiff’s complaint alleged no facts showing otherwise, the court dismissed the complaint for lack of standing.

The dismissal in Zemel relied upon, among other cases, the District of New Jersey’s previous decision in Susinno v. Work Out World. In Susinno, the court held that one, one-minute robocall to the plaintiff’s mobile phone and the alleged resulting “loss of some de-minimus battery power over a minute” was not the type of activity the TCPA was enacted to protect.

The takeaway from these cases is that some courts may afford greater TCPA protection for violation calls made to residential phones versus those made to cellphones. In addition, the majority of Spokeo challenges to TCPA complaints have not been successful. These decisions are hopefully part of a trend – at least in some courts – to critically analyze and dismiss cases challenging one or only a few alleged violation calls.

Jeffrey D. Knowles is a partner in Venable’s Advertising, Marketing and New Media Practice Group. Stephen R. Freeland is an attorney in the group. They can be reached at (202) 344-4000.


About the Author: Stephen R. Freeland

Stephen R. Freeland

About the Author: Jeffrey D. Knowles

Jeffrey D. Knowles

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