Many children, including myself, were taught the childhood mantra: “Sticks and stones may break my bones, but words will never hurt me.” The chant intended to be a retort to name calling—a declaration that you were above the insults. But what about text messages? Could a single text message hurt me in a way that could amount to the harm required to sustain a Telephone Consumer Protection Act (TCPA) claim? On August 28, 2019, the Eleventh Circuit answered this question in the negative with its decision in Salcedo v. Hanna, — F. 3d –, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019). With Salcedo, the Eleventh Circuit created a potential circuit split by finding that a plaintiff could not rely on a single text message to amount an injury in fact necessary to establish Article III standing for a TCPA action.

The plaintiff filed a TCPA suit after having received a single multimedia text message from his former attorney and that attorneys’ law firm offering a ten percent discount on future services. The Plaintiff alleged this lone message caused him harm by (1) wasting his time during which both he and his phone “were unavailable for otherwise legitimate pursuits,” and (2)”resulted in an invasion of [his] privacy and right to enjoy the full utility of his cellular device.” The Eleventh Circuit rejected both arguments.

The appellate court found that its Circuit precedent holding a single fax sufficient to establish injury in fact inapplicable, distinguishing the purported harms associated with receiving a single text message from that of receiving a single fax. Unlike a fax, the Eleventh Circuit found no “tangible costs such as the consumption of paper and ink or toner to establish injury in fact” associated with a text message. Further, the Court also held that while receiving a fax creates “intangible costs” of wasted time and lost opportunity, receipt of a text message creates no such intangible costs as it “consumes the device not at all.” And as to phone calls, the court found that “Congress’s legislative findings about telemarketing suggest that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA. In particular, the findings in the TCPA show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging.” Indeed, “cell phones are often taken outside of the home and often have their ringers silenced, presenting less potential for nuisance and home intrusion.” Differentiating text messages from calls (even calls to cell phones), the court held “[o]n text messaging generally, then, the judgment of Congress is ambivalent at best; its privacy and nuisance concerns about residential telemarketing are less clearly applicable to text messaging.” “And congressional silence is a poor basis for extending federal jurisdiction to new types of harm. We take seriously the silence of that political branch best positioned to assess and articulate new harms from emerging technologies.”

At bottom, the court held that the receipt of a single unsolicited text message, without more, cannot constitute a sufficient injury in fact to confer Article III standing under the TCPA: “The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. All told, we conclude that [the plaintiff’s] allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.”

The Eleventh Circuit also directly addressed the Ninth Circuit’s decision in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), stating that it is a “broad overgeneralization” to conclude that an isolated text message constitutes “unsolicited contact” establishing “concrete harm.” (Although not mentioned by the Eleventh Circuit, in Van Patten, the plaintiff also received multiple text messages – not just one as in Salcedo.)

The Salcedo decision will create new challenges for class certification, certainly in the Eleventh Circuit and potentially elsewhere. It will be crucial that class members be able to identify specific harms caused by the receiving a text message. This will undoubtedly be a high hurdle for any class.

Now, repeat after me: “Sticks and stones may break my bones, but in the Eleventh Circuit a single text message might not hurt me.”