On May 26, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Cranor v. 5 Star Nutrition, LLC, holding that the receipt of a single text message is a sufficient injury to convey standing under the Telephone Consumer Protection Act (“TCPA”). This creates a circuit split with the Eleventh Circuit’s 2019 opinion entered in Salcedo v. Hanna, which we previously blogged about.
Cranor made its way to the Fifth Circuit after the district court dismissed the case on grounds that a single text message doesn’t “involve [the same] intrusion into the privacy of the home” as a call to a residential landline. In its opinion, the Fifth Circuit looked to the (1) congressional purpose of the TCPA, and (2) traditional basis for actionable, intangible harm in holding that the receipt of a single text message constitutes an injury under the TCPA.
The appellate court first looked to the text of the TCPA, and concluded that “Congress determined that nuisance arising out of unsolicited telemarketing constitutes a cognizable injury.” The court diverged from Salcedo here in three ways: (1) it found that, for TCPA purposes, a call to a residential landline and a text message to a cellular phone is a distinction without a difference because “the TCPA expressly covers cellular phones.”; (2) the TCPA expressly remedies the “nuisance and invasion of privacy” of telemarketing outside the home; and (3) Congress’s delegation of the TCPA promulgating authority to the FCC is not limited to privacy within the home. The Fifth Circuit found that each of these three reasons supports the conclusion that the TCPA applies to unsolicited telemarketing outside the home.
Next, the court determined that the receipt of one unsolicited text message is comparable to a public nuisance. The court minced no words comparing the defendant to “someone who illegally emits pollution or disease that damages members of the public.” (We believe there may be some important distinctions not addressed in the comparison, but that’s for another day and another litigation.). Beyond that, the court found that the plaintiff’s alleged cell battery depletion and use of his cell phone minutes constitute personal injuries “that separate him from the public at large.” The Fifth Circuit further declined to accept the rationale in Salcedo that a single text message is a “fleeting infraction upon personal property.” Specifically, the court determined that the injury analysis should focus on the “close relationship” an intangible harm has to traditionally regarded harms, rather than the “substantiality of an alleged harm.”
Now we wait and see whether the defendant in Cranor seeks the Supreme Court’s review to resolve the circuit split created by Cranor. As we continue to follow this, and other TCPA issues closely, be sure to check back in for more updates.