Does the receipt of a single ringless voicemail (RVM) create federal Article III standing for a Telephone Consumer Protection Act (TCPA) suit?
No, an Ohio federal court has ruled, finding that the plaintiff failed to allege that he suffered a concrete injury.
Matthew Dickson received an RVM that his phone transcribed to a text message. He testified that he did not remember where he was or what he was doing when he received it; his only recollection was that he read the RVM and forwarded it on to counsel.
He sued Direct Energy based on the RVM. Direct Energy moved to dismiss the suit for lack of standing.
U.S. District Judge John R. Adams granted the motion.
Article III standing requires a concrete injury even in the context of a statutory violation, he explained, so a plaintiff who alleges a bare procedural violation—divorced from concrete harm—cannot satisfy the injury-in-fact requirement of Article III.
Judge Adams began with analysis of the receipt of a single unsolicited text message, noting that the federal courts of appeal are divided on whether or not it is sufficient to confer standing.
The U.S. Court of Appeals, Eleventh Circuit, while the Second, Seventh and Ninth Circuits have issued contrary authority.
Courts are similarly divided over the issue of standing as it relates to a single RVM, the court said. A federal court in Georgia has found federal Article III standing over the receipt of a prerecorded voicemail, while the Eleventh Circuit has reached the opposite conclusion.
After reviewing “the plethora of authorities reaching varying conclusions,” the court sided with the jurisdictions finding receipt of a single RVM is insufficient “under the specific facts presented herein.”
“Dickson’s deposition testimony reveals that his allegation is the ‘bare procedural violation’ that Spokeo has held cannot give rise to standing,” Judge Adams wrote.
“Dickson cannot recall where he was or what he was doing when he received the RVM. His only recollection appears to be that at one point in time, he read the RVM and subsequently forwarded it on to counsel because he had previous experience with the TCPA. … Dickson’s sole alleged harm appears to be the de minimis time he took to read the RVM, a time so limited that he did not even recall its contents.”
Under the facts as alleged by Dickson, he could not demonstrate the concrete harm necessary to show injury-in-fact, the court said, granting the defendant’s motion to dismiss.
To read the memorandum opinion and order in Dickson v. Direct Energy, LP, click here.
Why it matters: The court relied on the plaintiff’s deposition testimony to find that he did not suffer a concrete injury, leaving him without an injury-in-fact to establish standing. However, the court provided something of a road map for TCPA plaintiffs seeking to allege a concrete injury when it distinguished Dickson’s complaint from that in another suit, where the plaintiff claimed she was alerted by an alarm when she received the message, had to use her minutes to retrieve the message and stated that if it had been received while roaming, it could have triggered roaming charges.