By Mary Love


The Eleventh Circuit recently created a circuit split regarding whether an unsolicited text message constitutes a concrete injury necessary to establish standing under the Telephone Consumer Protection Act (TCPA). The issue of standing under Article III was extensively addressed in the Supreme Court decision, Spokeo, Inc. v. Robins. However, the circuit courts have differed in their application of the Spokeo framework to claims alleging a violation of the TCPA for receiving unsolicited text messages. The disagreement among the circuit courts centers around whether there is a concrete injury. The impact of this disagreement is costly for businesses that may be exposing themselves to endless litigation by sending a simple text message. The Eleventh Circuit, contrary to the Second and Ninth Circuits, properly applied the Spokeo framework and held that there was no concrete injury. In reaching its decision, the Eleventh Circuit conducted an in-depth comparison of historical harms to the alleged harm and closely studied congressional intent underlying the TCPA’s enactment. Furthermore, the Eleventh Circuit’s Spokeo analysis is in line with other courts addressing the issue of intangible harms. Given the thorough analysis set forth in Spokeo and the Eleventh Circuit’s reasoned application of the TCPA, the Supreme Court should resolve the circuit split by adopting the Eleventh Circuit’s approach.

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Recommended Citation
Mary Love, Case Note, You Have One New Message—The Eleventh Circuit Correctly Applies the Spokeo Framework to TCPA Claims for Unsolicited Text Messaging, 73 SMU L. Rev. F. 187 (2020).

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