texting on cellphone Photo: Tero Vesalainen/Shutterstock.com

For most, a random text from a company marketing a service or product is annoying. But is that single unsolicited text enough to bring a Telephone Consumer Protection Act (TCPA) violation suit?

As courts debate whether unsolicited text messages can trigger a lawsuit, lawyers say TCPA compliance is still key to avoiding litigation battles.

In 2017, the U.S. Court of Appeals for the Ninth Circuit in Van Patten v. Vertical Fitness Group ignited some fears that one unsolicited marketing text message is sufficient to bring a TCPA violation.

"Unlike in Spokeo [v. Robins], where a violation of a procedural requirement minimizing reporting inaccuracy may not cause actual harm or present any material risk of harm the telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA," wrote Judge Ronald Gould in the panel opinion. "Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients."

In contrast, last year the Eleventh Circuit ruled a single, or even a few, text messages didn't have Article III standing under Spokeo.

The plaintiff's "allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms," the panel wrote in its August 2019 Salcedo v. Hanna opinion. 

Adding a further wrinkle into the disagreement is the Seventh Circuit's recent Gadelhak v. AT&T Services opinion, released last week. On Feb. 19, the Seventh Circuit took a different perspective from the Eleventh Circuit. 

The Seventh Circuit wrote, "A few unwanted automated text messages may be too minor an annoyance to be actionable at common law. But such texts nevertheless pose the same kind of harm that common law courts recognize—a concrete harm that Congress has chosen to make legally cognizable."

In turn, the Seventh Circuit agreed with the Ninth Circuit's Van Patten opinion and the Second Circuit's 2019 decision in Melito v. Experian Marketing Solutions that the number of texts is irrelevant to the injury-in-fact analysis and unwanted text messages can constitute an injury.

Winston & Strawn partner Sean Wieber noted suggesting there's a circuit split regarding if one unsolicited text message has standing is somewhat misleading.

"Only the Eleventh Circuit has specifically addressed the 'single text message' scenario," Wieber wrote in an email.

"The Ninth, Second and Seventh Circuit courts have held, generally, that receiving text messages constitutes injury under the TCPA, without specifically noting how many text messages are required," he added.

While lawyers said they were unsure if other circuit courts would take the Eleventh Circuit's stance, they all agreed compliance with the TCPA is the first step to prevent a violation or lawsuit.

"If companies want to avoid having to defend these claims at all, they should make sure to check their internal procedures and the procedures of the third-party companies they utilize for telemarketing purposes," explained Mark Migdal & Hayden attorney Yaniv Adar.

Stroock & Stroock & Lavan partner Stephen Newman also cautioned companies to frequently check their databases to confirm a phone number still belongs to a consenting consumer.

"Be very careful in getting consent and to use the database pertaining to transfer and deactivated numbers," he said. "You want to make sure that mobile number hasn't been assigned to someone new."

The recycled phone number issue is an ongoing challenge companies are dealing with, and in December 2018 the Federal Communications Commission (FCC) announced it was developing a reassigned phone number database to address the problem.

The database would allow companies to see if a telephone number assigned to consumers who want their calls has been disconnected and is eligible for reassignment. Despite the efficiency that would provide companies and consumers, the FCC postponed the launch of that database in September 2019.

Absent a single, federal registry, Troutman Sanders consumer financial services partner Chad Fuller said companies should have a compliance management system to quickly address consent confusion and mitigate risk.

Should litigation be unavoidable, Troutman Sanders partner Virginia Bell Flynn noted if a federal court decides you don't have Article III standing, the plaintiff can also bring the suit in state court alleging violation of a state's telemarketing law. Noticeably, Florida, which is in the Eleventh Circuit, has an an Article III standing requirement in the state's constitution, Flynn added.