6th Circuit: Single RVM confers standing

Courts Appellate Sixth Circuit TCPA Consumer Protection Autodialer Class Action

The U.S. Court of Appeals for the Sixth Circuit recently held that receiving one ringless voicemail (RVM) was enough to confer standing upon a plaintiff under the TCPA. In that case, plaintiff asserted he received several RVMs to his cell phone but never consented to receiving the messages. He filed a putative class action suit for violations of the TCPA, alleging the defendant used an automated telephone dialing system (autodialer) to deliver multiple RVMs to his cell phone advertising its services. According to the plaintiff, the RVMs tied up his phone line, cost him money, and invaded his privacy. During discovery, an expert concluded that only one of the 11 voicemails plaintiff claimed to have received was from the defendant. The defendant moved to dismiss, arguing the plaintiff lacked standing because he did not suffer a concrete injury. The district court granted defendant’s motion, ruling that receiving a single RVM did not constitute a concrete harm sufficient for Article III standing, because, among other things, plaintiff could not recall what he was doing when the RVMs were sent, he was not charged for the RVM, the RVM did not tie up his phone line, and he spent a very small amount of time reviewing the message.

On appeal, the 6th Circuit noted that it had not previously considered whether receiving a single RVM for commercial purposes is sufficient to confer standing under the TCPA. To determine whether an intangible harm—such as receiving an unsolicited RVM—rises to the level of concrete injury, the appellate court reviewed U.S. Supreme Court rulings on standing. “[Plaintiff’s] receipt of an unsolicited RVM bears a close relationship to the kind of injury protected by the common law tort of intrusion upon seclusion; and his claimed harm directly correlates with the protections enshrined by Congress in the TCPA,” the 6th Circuit wrote, reversing and remanding the district court’s judgment and stating that “[plaintiff] suffered a concrete injury in fact sufficient for Article III standing purposes.”