6th Circuit Holds One Ringless Voicemail Sufficient to Violate TCPA

The 6^th Circuit Court of Appeals reversed a lower court decision and found that a single ringless voicemail (RVM) was enough to violate the TCPA.  

The district court determined that the plaintiff only received one RVM and dismissed the lawsuit finding that the plaintiff suffered no concrete injury and therefore lacked standing.  The plaintiff appealed to the 6^th Circuit.  

This was a case of first impression as the 6^th Circuit had not previously considered whether the receipt of a single RVM for commercial purposes presented a concrete harm sufficient to confer standing under the TCPA.  

To determine whether an intangible harm – such as receiving one unsolicited RVM – rises to the level of a concrete injury, the 6^th Circuit ruled that courts may look to (1) history and tradition and (2) Congress’s judgment in enacting the law at issue.  The Court found the RVM “bears a sufficiently close relationship to the traditional common law tort of intrusion upon seclusion” and “the claimed harm directly correlates with the protections enshrined by Congress in the TCPA.”

The 6^th Circuit panel reversed the lower court holding that the plaintiff did have Article III standing to pursue a class action lawsuit in that one RVM was sufficient to show a concrete injury.  

It is important to recognize that the case law involving TCPA claims is ever changing.  The 11^th Circuit Court of Appeals had previously affirmed a dismissal where a plaintiff received one RVM (Grigorian v. FCA US LLC); however, that decision predated a US Supreme Court case (TransUnion LLC v. Ramirez) where the court clarified the standing requirements, a distinction the 6^th Circuit seized upon in issuing its ruling.  And as noted in our post, Does a Single Call to a Cellphone Meet the Concrete Injury Requirement? The Drazen Decision is Forthcoming, the 11^th Circuit is also reexamining its TCPA standing precedent applicable to a single text message and a single mobile call in a pair of cases under review.

Dickson v. Direct Energy, LP, No. 22-3394, 2023 WL 3749640, at *1 (6^th Cir. June 1, 2023)