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Man Sues Former Attorney Over Single Text Message

Inbox view of pending e-mail communication, New messages on mobile smartphone.
By Laura Temme, Esq. on September 23, 2019

A reminder of your upcoming dentist appointment, a notification that a package has arrived for you, a text from a family member, all in one place: Your mobile phone. Most of us receive dozens of messages a day, some more relevant to our lives than others.

One man, John Salcedo, felt a single promotional text message from his former attorney’s law firm was enough to warrant a claim under the Telephone Consumer Protection Act (TCPA). Salcedo received a solitary multimedia message from The Law Offices of Alex Hanna in 2016, offering a 10% discount on future services. He took issue with being sent this message and filed suit on behalf of himself and everyone who had received such messages over the previous four years.

Text Messages Fall Under TCPA Rules

In response to widespread complaints about telemarketing, Congress passed the TCPA in 1991 - prohibiting the use of automatic telephone dialing systems to call someone without their consent. Technically, the TCPA is silent on texting since text messages didn’t exist when Congress enacted the law. However, the FCC has used its rulemaking authority to extend the statute’s protection to texts. So, on the surface, Salcedo had a plausible claim. But, issues of standing put his success on hold.

Can A Single Text Cause a Concrete Injury?

The 11th Circuit’s inquiry on Salcedo’s standing hinged on whether he suffered an injury in fact stemming from the law firm’s text message. After comparing Salcedo’s experience to previous cases, the court held that a single text message did not constitute a concrete injury, despite the plaintiff’s contention that receiving it caused both him and his phone to be “unavailable for otherwise legitimate pursuits.”

Comparing the text message to a single fax (which has been viewed as a concrete injury under the TCPA) the panel reasoned that the text had no tangible cost. It incurred no charges from the plaintiff’s wireless provider, and unlike a fax, it used no paper, toner, or ink. Salcedo also failed to assert a specific amount of time allegedly wasted by the text message. Moreover, while an incoming fax renders the machine temporarily unable to receive other messages, a text doesn’t have the same effect on a mobile phone.

This decision could impact future TCPA class actions over text messages by requiring class members to identify specific harms. But, that hurdle likely will not seem too high in cases with more persistent communication, like those the TCPA was written to prevent.

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