“Zero, zip, zilch:” Squire Patton Boggs Team Earns First-in-Nation Ruling Finding No Injury for Single Fax Attached to Email

What does an allegation of “wasted time” mean in a standing analysis under the Junk Fax provision of the TCPA when a fax is received by email and not a traditional fax machine? The Squire Patton Boggs TCPA team raised this issue of first impression, and Judge Sheri P. Chappell in the Middle District of Florida answered by dismissing a Junk Fax class action complaint and finding no Article III injury-in-fact, where a plaintiff alleged harm of spending “one minute” to review a single fax received by email. Daisy, Inc. v. Mobile Mini, Case No.: 2:20-cv-17-FtM-38MRM, 2020 U.S. Dist. LEXIS 175536 (M.D. Fl. September 24, 2020). Extending the Eleventh Circuit’s holding in Salcedo v. Hanna, 936 F.3d 1162, 1173 (11th Cir. 2019) (which held general allegations of wasted time from receiving an unwanted text message do not amount to a concrete injury), and relying on TCPA Congressional intent, the court ruled, “It is clear Congress did not view one wasted minute spent reviewing a junk fax received through email as a concrete injury.” More specifically, “Congress made no findings—zero, zip, zilch—related to the harms it sought to prevent by prohibiting junk faxes.”

There was no dispute about the facts in Daisy: plaintiff received one unwanted ad by email, not a fax machine, using Vonage’s online service. After an expedited discovery schedule, the SPB team moved for summary judgment on both the merits, arguing that an email delivered by an online fax service falls outside the ambit of the TCPA, and for lack of standing, arguing that plaintiff’s TCPA claim neither satisfies the “injury-in-fact” requirements of Article III standing nor the doctrine of prudential standing because the claim does not fall within the “zone of interests” Congress intended to protect. Instead of wading into the into the debate of “is an email delivered by an online fax service subject to the TCPA,” the court addressed the threshold issue of standing first, alleviating the need to reach the merits, and provided a brief lesson in TCPA congressional history to conclude that the traditional harms necessary for standing were lacking.

From the outset, the court noted that this case was distinguishable from all other Junk Fax cases decided in the Eleventh Circuit because the plaintiff received the fax by e-mail, not a fax machine. Thus, this case was inapposite from others where the Eleventh Circuit found concrete injuries based on plaintiffs’ occupied fax machines and their lines or imposed printing costs. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252-53 (11th Cir. 2015); Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362, 1366 (11th Cir. 2017). As the Court observed, “If this were a regular fax case (like those situations) Daisy would have standing. But this case is different.”

Relying on the Eleventh Circuit’s decision in Salcedo v. Hanna, the Court found the analysis for standing is “qualitative, not quantitative,” and noted that many district courts in Florida have dismissed unwanted text cases for no standing where the only identified injuries were short amounts of wasted time, similar to plaintiff’s allegations of “wasting 60 seconds to review the email.” In other words:

[T]here is no qualitative difference in harm between reading then answering an unwanted text and reviewing then deleting a junk fax sent by e-mail. The only difference is the few seconds longer that Daisy’s employee said it took. But the quality of harm—not the counting of seconds—decides concreteness.

The Court then recognized the dearth of cases analyzing TCPA standing for faxes received via e-mail (there are only two, one of which was decided pre-Spokeo, and the other relied on a pre-Spokeo analysis), and thusly looked to Spokeo’s instruction to rely on “history and the judgment of Congress” to evaluate “intangible harm.” In so doing, the Court found no analogies to the purported harm alleged by plaintiff (i.e., wasted time spent reviewing a junk fax received by e-mail) to common law actions such as trespass to chattel, conversion, invasion of privacy, and nuisance: “these torts are unrelated to the harm alleged here because the fax did not deprive Daisy of using its fax machine or computer,” and “receiving an e-mail does not interfere with someone using a computer.” After this analysis, the court concluded, “Daisy’s alleged harm for one minute of wasted time resembles no historical cause of action. Rather, this is ‘the kind of fleeting infraction upon personal property that tort law has resisted addressing.’ See Salcedo, 936 F.3d at 1172. And it is ‘more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face’ than a harm conferring Article III standing.”

Next, the court turned to Congressional judgment, finding it “instructive and important.” Observing, “Congressional judgment does not support Daisy’s contention it suffered a concrete injury,” the court was pointed in stating that it was concerned only with what Congress actually said, and nothing more:

Again, the statute prohibits unwanted ads sent from a fax machine, computer, or other device to a fax machine. While Congress could have extended that prohibition to faxes no matter how they are received, it did not. So there is no indication from the statutory text that Congress sought to protect against the harm of wasted time spent reviewing faxes received by e-mail. Likewise, Congress made no findings—zero, zip, zilch—related to the harms it sought to prevent by prohibiting junk faxes … And nowhere within the legislative history is any indication that Congress was concerned with anything like an employee spending a minute reviewing a junk fax attached to an e-mail.

Last, the court made clear that its holding was based not on any “recent FCC rulings,” but on Congressional intent. In fact, the court emphasized, “without deferring to the FCC, regulatory interpretation of the TCPA buttresses a conclusion the harm alleged here is not concrete. It is congressional—not FCC—judgment the Court relies on most.” The court acknowledged that the FCC rulings in In re Amerifactors Fin. Grp. LLC Pet. for Expedited Declaratory Ruling, No. 02-278, 05-338, 2019 WL 6712128, at *3-4 (2019) and In re Joseph T. Ryerson & Son, Inc. Pet. for Expedited Declaratory Ruling, No. 02-278, 05-338, 2020 WL 5362216, at *4 (2020) simplify “clarify” the position that “Daisy’s alleged harm is not among the category of injuries Congress intended to remedy.” For this proposition, the court echoed the FCC’s finding in Ryerson that “transmissions that are effectively email do not implicate the consumer harms Congress sought to address in the TCPA, such as tying up phone/fax lines and the unnecessary use of paper and toner/ink from automatic printing.”

In a nutshell, the court was clear: in enacting the Junk Fax provision of the TCPA, Congress did not intend to protect against wasted time spent reviewing faxes received over email. In the court’s view, the history and congressional intent of the TCPA led to this inescapable conclusion. Complaint dismissed.

Score one for TCPAWorld.

 

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