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July 2023

Sixth Circuit Holds That Receipt of One Ringless Voicemail Satisfies Article III Standing Under the TCPA

The Sixth Circuit recently held as a matter of first impression that a plaintiff's receipt of a single unsolicited ringless voicemail ("RVM") was a concrete injury in fact sufficient for Article III standing purposes.  Dickson v. Direct Energy, LP, 69 F. 4th 338 (6th Cir. 2023).

Case Background

The plaintiff alleged that the defendant delivered multiple RVMs to his cell phone in 2017, advertising its services.  One RVM allegedly placed on November 3, 2017, stated that the call was from "Nancy Brown with Direct Energy." The plaintiff never consented to receive these communications.  The plaintiff thus filed a putative class action alleging that the defendant violated the Telephone Consumer Protection Act's ("TCPA") automated calling prohibitions under 47 U.S.C. § 227(b)(1) by sending RVMs.  The plaintiff claimed these communications harmed him because they tied up his phone line, cost him money, and were generally a nuisance. The plaintiff also contended that the RVMs disturbed his solitude and invaded his privacy.

During discovery, the plaintiff testified at his deposition that he received 11 RVMs from the defendant and reiterated that they invaded his privacy. Regarding the November 3, 2017, RVM in particular, the plaintiff testified that he realized the voicemail was on his phone just a few minutes after receiving it. While the plaintiff could not remember precisely what he was doing when he received that message, he was "sure it interrupted something" in his routine. The plaintiff also testified that he generally listened to every voicemail message he received from the defendant in its entirety.  The defendant retained an expert witness to analyze the plaintiff's phone records. The expert concluded that of the 11 voicemails plaintiff produced in discovery, only the one he received on November 3, 2017, was from the defendant.

The defendant moved to dismiss plaintiff’s complaint for lack of standing, arguing that the plaintiff had suffered no concrete injury. In granting the motion, the district court stated that the plaintiff received only one RVM. The district court held that the plaintiff's receipt of a single RVM did not constitute concrete harm sufficient for Article III purposes because (a) the plaintiff could not recall what he was doing when he received the RVM, (b) the plaintiff was not charged for the RVM, (c) the RVM did not tie up his phone line, and (d) the plaintiff spent an exceedingly small amount of time reviewing the RVM. 

The plaintiff appealed the district court's dismissal. On appeal, the Sixth Circuit concluded that the district court erred in dismissing the plaintiff's TCPA claim for lack of standing.

Court's Analysis

The Sixth Circuit had not previously considered whether receipt of a single RVM for commercial purposes presents a concrete harm sufficient to confer standing to make a claim under the TCPA.  As discussed below, the Sixth Circuit found that the plaintiff's claims satisfied Article III's demands because his alleged injury under the TCPA constitutes a concrete harm.

The court began its analysis by reviewing whether an intangible harm – such as the plaintiff's receipt of an unsolicited RVM – rose to the level of a concrete injury by looking at both (1) history and tradition and (2) Congress's judgment in enacting the law at issue.  On the first prong, the court found that the plaintiff's alleged injury, namely that the defendant disturbed his right to be left alone, is closely related to the kind of harm protected by common law by the intrusion upon seclusion tort.  The court found that the defendant's unsolicited call (RVM) to the plaintiff's telephone interjected itself into the plaintiff's private sphere. The court stated that this implicated the plaintiff's common law right to seclusion – his right to be left alone from others, including by means of telephonic communications.  Thus, the court found that the plaintiff satisfied the post-Spokeo and TransUnion standing inquiry.

Significantly, the Sixth Circuit rejected the district court's reliance on recent Eleventh Circuit cases (Grigorian v. FCA US LLC, 838 F. App'x 390 (11th Cir. 2020) and Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019)), which found no standing for receipt of a single RVM and one text message, respectively.  The Sixth Circuit stated that Grigorian did not conduct the standing inquiry required by Spokeo, which "omission leaves a gap in reasoning that greatly diminishes Grigorian's persuasive value here."   Similarly, the Sixth Circuit found that Salcedo misapplied Spokeo in reasoning that intrusion upon seclusion requires evidence of substantial intrusion, and the plaintiff's "isolated," "momentary" injury fell short of that standard. Therefore, the plaintiff lacked a historical analogue to his claimed harm.  

The Sixth Circuit rejected this approach as an appropriate measure of concreteness because it requires the plaintiff to show that its harms would suffice to state an independent claim at common law – a prerequisite that TransUnion has since unequivocally clarified is not the applicable standard.  The Sixth Circuit stated that Spokeo requires a close common law analogue in kind, not degree.  The Sixth Circuit also rejected Salcedo on the basis that the common law tort of seclusion upon seclusion protects against invasive telephone contacts.

Regarding the second prong, the court noted that the parties did not develop arguments "so it appears not to be in dispute."  Nevertheless, the court found that Congress enacted the TCPA after finding that unrestricted telemarketing practices harm consumers.  The court stated that the law is intended to protect from invasions of privacy wrought by unauthorized automated and prerecorded calls.  Because the plaintiff alleged that he received an unsolicited call that invaded his privacy, the Sixth Circuit held that the plaintiff satisfied the second prong.


The Sixth Circuit concluded that the plaintiff satisfied both prongs of the standing analysis set forth in Spokeo and TransUnion: the plaintiff's receipt of an unsolicited RVM bore a close relationship to the kind of injury protected by the common law tort of intrusion upon seclusion; the plaintiff's claimed harm directly correlated with the protections enshrined by Congress in the TCPA.   Thus, the Sixth Circuit held that the plaintiff suffered a concrete injury, sufficient for Article III standing purposes, and reversed and remanded the case.

Notably, the Eleventh Circuit is reconsidering Article III standing under the TCPA in Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022), which reaffirmed Salcedo, but recently vacated its opinion and granted rehearing en banc.  See Drazen, 61 F.4th 1297 (11th Cir. 2023).  Please find an article containing a comprehensive summary of the Salcedo decision, also written by the author. 

Advertising & E-Commerce

Thomas C. Blatchley

Advertising & E-Commerce
Consumer Protection Litigation