TCPA Article III Battle Continues: “Enduring” a 30 Second Voicemail is Harm Enough to Afford Standing

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With the ATDS picture slowly taking shape in TCPAWorld the newest battle surrounds Article III standing in the context of TCPA violations.

In order to assert standing to sue under the statute a Plaintiff must demonstrate–for each and every phone call folks–that the call caused “concrete” and “real world harm” that is “fairly traceable” to the Defendant’s conduct. A new decision out today in Drake v. Firstkey Homes, LLC, Case No. 19-cv-1746 (N.D. Ga. Feb. 21, 2020) explores the contours of both aspects of the standing inquiry. And–given the *ahem* creative arguments presented by the Defense– the decision is quite illuminating. The opinion can be found here: Drake v. Firstkey

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Things start off well enough for the Defense in Drake. The Plaintiff’s first claim was that a pre-recorded voicemail left by the Defendant–yes, the case involved a single pre-recorded call leading to a putative nationwide class action–violated the TCPA delivery restrictions because it did not include an automated opt-out mechanism as required by the statute. Yet, as Defendant argued, Plaintiff never received a second call. So the absence of the opt-out mechanism could not have caused Plaintiff any harm. The Court agreed and concluded that the failure to include the opt-out mechanism was merely a procedural violation of the statute that amounted to zero real world harm. Claim dismissed.

So far so good.

But the Drake Court reached the opposite result on the issue of Article III harm resulting from the receipt of that same voicemail more broadly. Specifically, Plaintiff did not consent to the call and the Court found she was adequately injured by its receipt to justify the suit.

In reaching this conclusion, the Drake court analyzed the effect of both Salcedo and Cordoba and concluded, in essence, that the holding of Salcedo is limited to text messages because phone calls necessarily tie up a phone line in a way that text messages do not. The Court finds that “enduring” a 30 second voicemail is sufficient to cause Article III harm.

The Court was also unmoved on the Defendant’s argument that Plaintiff’s injury was not traceable to its conduct. The number at issue had been (erroneously?) supplied by the Defendant’s customer–the appropriately-named-for-February Ms. Valentine. So, the argument went, Plaintiff lacks standing to sue Defendant because Valentine is the one to blame for the phone calls and not it. But the call at issue was plainly placed by the Defendant. So the Court concluded the injury was traceable to its conduct. (That’s…pretty straightforward folks.)

Defendant also argued that Cordoba somehow required Plaintiff to respond to a voicemail and ask not to receive further calls before she could sue for a violation of the TCPA’s pre-recorded voice provisions. This is so because the Cordoba court had held that a party that had never asked not to receive calls cannot recover for a Defendant’s failure to maintain an internal DNC list. But it does not follow–at least in the Drake court’s view– that a Plaintiff must therefore affirmatively remove herself from a calling list when it becomes apparent she was receiving inadvertent phone calls.

Apart from standing, the Defendant also argued the FCC’s one-call recycled number afforded a defense. That’s an odd argument given that: i) the safe harbor was set aside by the D.C. Circuit Court of Appeal (although it was replaced by something even better); and ii) the number at issue was not a recycled number but just a wrong number. To surmount the latter hurdle Defendant offers this Hail Mary: the number must have been recycled to Plaintiff at some point–I mean, she didn’t always have the phone number, right? I mean, right?

Eesh.

While it is undoubtedly true that Plaintiff was not born with her phone number and it must, therefore, have been “reassigned” from somebody else to her at some point, that doesn’t mean it is a recycled phone number for purposes of the FCC’s safe harbor. The recycled number safe harbor existed–while it existed–to protect callers that received consent from the subscriber of a phone and then continued to call the new subscriber when the number changed hands without their knowledge. It, rather obviously, did not afford one free call to any number that was ever assigned to anyone ever. The Drake court makes short work of this argument.

It is important to understand, of course, that the one-call safe harbor (again, while it existed) was not a general “wrong number” safe harbor–it was a specific recycled number safe harbor. A point that was not lost on the Drake court.

Drake also goes on to reject Defendant’s constitutional challenge, but that was more on procedural grounds than substantive and is not worth discussion here except to note that if you ever want to read a really long footnote check out FN6.

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