Fifth Circuit Splits with Eleventh, Holds That Receipt of a Single Robotext in Violation of TCPA Creates Article III Standing

In Cranor v. 5 Star Nutrition, No. 19-51173 (5th Cir. May 26, 2021), the panel holds that even a single robotext in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”) is analogous to a common-law public nuisance, and thus an injury to confers Article III standing.

5 Star Nutrition, an Austin-based nutritional supplement store, sent allegedly unwanted texts to plaintiff Cranor. At first the parties “entered into a pre-suit settlement agreement … to avoid litigation,” but then 5 Star sent one more robotext to the plaintiff. “Cranor … filed a class action complaint in the Western District of Texas, alleging that 5 Star ‘negligently, willfully[,] and/or knowingly sen[t] text messages to [Cranor’s] cellular telephone number using an automatic telephone dialing system . . . without prior express consent, in violation of the [TCPA].’”

The district court dismissed under Fed. R. Civ. P. 12(b)(1) for lack of standing. While the court held that “text messages are sufficient forms of injury in fact in actions arising out of the [TCPA],” it held that “the single text message here does not constitute [an] injury in fact . . . . [A] single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.”

The Fifth Circuit reverses. “This is a case about standing’s first requirement—injury in fact . . . . We conclude Cranor has alleged a cognizable injury in fact: nuisance arising out of an unsolicited text advertisement.”

The panel holds first “the text of the TCPA shows Congress determined that nuisance arising out of unsolicited telemarketing constitutes a cognizable injury . . . . The Act itself was prompted by consumer outrage at the ‘proliferation of intrusive, nuisance’ calls from telemarketers . . . . In Congress’s view, the only way to achieve that end was to completely ban certain types of calls, while permitting the FCC regulatory flexibility to allow others not at issue here.” The panel notes that the Second, Seventh and Ninth Circuits had also found a cognizable injury, while the Eleventh Circuit did not, citing Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019).

Second, following the historical analysis provided by Spokeo v. Robins, 136 S. Ct. 1540 (2016), the panel holds that the injury defined by the TCPA is analogous to the common-law tort of public nuisance. “Cranor wants to use our Nation’s telecommunications infrastructure without harassment. In that sense, he’s similar to someone who wants to use another piece of infrastructure like a road or bridge without confronting a malarial pond, obnoxious noises, or disgusting odors.” Moreover, however tiny, Cranor suffered an injury specific to himself. “After receiving the unwanted text, Cranor was prompted to read the message and send a ‘STOP’ request. The text itself ‘deplet[ed] the battery life on [Cranor’s] cellular telephone and . . . us[ed] minutes allocated to [him] by his cellular telephone service provider.’”

Again, the Eleventh Circuit reached the opposite conclusion. “In its view, a single text message is ‘the kind of fleeting infraction upon personal property that tort law has resisted addressing.’” But according to the panel, the Eleventh Circuit erroneously “focus[ed] on the substantiality of the harm in receiving a single text” in Salcedo. “Salcedo’s focus on the substantiality of an alleged harm threatens to make this already difficult area of law even more unmanageable. We therefore reject it.”