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The Supreme Court’s recent decision in Spokeo Inc. v. Robins may offer a new avenue of attack for Telephone Consumer Protection Act (“TCPA”) defendants. Spokeo does not involve the TCPA; rather, it involves a standing issue in a case brought under another federal consumer protection statute, the Fair Credit Reporting Act (“FCRA”). The FCRA requires covered businesses to take steps “to assure [the] maximum possible accuracy of” a report prepared by the business, and like the TCPA, the FCRA permits private rights of action.
Robins initially filed a class action lawsuit against Spokeo for various inaccuracies in a report Spokeo prepared about him. Spokeo sought, and the trial court granted, a motion to dismiss the case on the grounds that Robins did not suffer an “injury in fact” as required by Constitutional standing principles. The Ninth Circuit reversed the trial court, holding that the violation of a statutory right with respect to a particular plaintiff could satisfy the injury-in-fact requirement.
In Spokeo, the Supreme Court confirmed that an injury in fact requires that the injury be both particularized and concrete and that Congress cannot eliminate this standing requirement. Thus, absent a concrete injury, violation of a statutory right does give rise to an injury in fact for standing purposes. And, while an injury need not be tangible to be concrete, the Court held that “a bare procedural violation” of the FCRA was insufficient to establish a concrete harm. Therefore, the Court determined that the Ninth Circuit failed to fully consider the distinct injury requirements of concreteness and particularization and remanded the case back to the Ninth Circuit for further consideration.
With respect to TCPA litigation, requiring a plaintiff to show an actual injury will give defendants another tool to stop litigation early in the process. Although the Ninth Circuit’s reconsideration of Spokeo may shed further light on what constitutes a concrete injury, Spokeo likely creates a spectrum in which some TCPA claims can be viewed as bare procedural violations of the TCPA or the FCC’s implementing rules and other claims constitute a concrete, if minor or intangible, harm.
For example, Spokeo likely means that the recipient of a solicited fax advertisement that does not contain the FCC’s required opt-out language would be hard-pressed to point to any actual harm caused by the fax. On the other hand, a recipient of an unsolicited fax advertisement probably can establish a concrete injury in the form of the paper and toner required to print the fax. Likewise, a consumer who incurs a charge for an unsolicited call to a cellphone would likely have standing under Spokeo. In still other situations, the question of harm might present a closer call, such as an unsolicited call to a cellphone for which there is no charge and that the recipient did not hear (and was unaware of) or heard and did not answer.
The bottom line: Spokeo represents a real and significant shield for TCPA defendants, but just how strong that shield is remains to be seen. Businesses affected by the TCPA should monitor how courts interpret Spokeo in the TCPA context, and they must remember that Spokeo will not eliminate TCPA risk.
The CommLaw Group is a TCPA Law Firm specializing in representing service providers accused of violating and/or seeking to comply with the TCPA and other federal and state laws governing mass marketing. The TCPA Lawyers at The CommLaw Group look forward to assisting clients with all aspects of TCPA compliance and legal defenses. If you have any questions about the contents of this Advisory or TCPA compliance, generally, please contact the TCPA Attorneys of The CommLaw Group: Seth Williams at firstname.lastname@example.org, Jane Wagner at email@example.com, or Nate Hardy at firstname.lastname@example.org.