CAN KIDS CONSENT TO CALLS?: Massive Expansion of TCPA Standing Rules by the Ninth Circuit May Set the Stage for an Even Bigger Ruling

Avid TCPAWorld readers will remember this story from October, 2021:

STATUTORY RAPE OF A CELL PHONE?: New Class Action Alleges that Minors Can’t Give Legal TCPA Consent to Be Called on the Their Cell Phones

An enterprising  Plaintiff’s shop argued that minors cannot provide consent to receive phone calls and efforts by Smosh–a company that specializes in selling stuff teenagers like–to text their phones amounted to statutory rape… of a phone.

The argument was untested but seemed just outlandish enough to work and create even more strife at the state level as the contours of consent would be determined by the rules of contract in each state.

Unfortunately TCPAWorld was denied a ruling on the issue when the lower court punted on the issue and dismissed (probably correctly) finding a lack of standing to raise the issue:

THE WAIT CONTINUES: Standing Punt Denies TCPAWorld Much Needed Ruling on Minor’s Consent

Well the Ninth Circuit just overturned the lower court and this is a real good news bad news situation. On the one hand, the expansion of standing here is just ridiculous. On the other hand, however, the stage is now set for a massive ruling on the enforceability of consent by a minor.

In Hall v. Smosh.com, 2023 WL 4281815 (9th Cir June 30, 2023) the Ninth Circuit Court of Appeals determined that the subscriber to a phone line listed on the National DNC list has standing to sue even where they were not using the phone at the time of the calls at issue:

The owner and subscriber of the phone suffers a concrete, de facto injury when their right to be free from such communications is violated—even if the communications are intended for or solicited by another individual, and even if someone else is using the phone at the time the messages are transmitted.

Eesh.

Let me pause and point out… no they don’t. This is hogwash and makes zero sense in light of Spokeo. 

For the uninitiated, the U.S. Supreme Court held nearly 7 years ago that Congress cannot create harms that do not exist in real life and people cannot sue for statutory violations–like a TCPA violation–that does not cause actual harm. The sort of violation at issue here–a call made to a number you subscribe to but that someone else uses–is precisely the sort of situation where YOU were not harmed, you weren’t even using the phone for goodness sake.

It should also be noted that the actual reasoning of Hall is not so broad as the language used makes out. Indeed, the entire ruling rests on a single sentence of analysis: “Hall’s allegation that she received unsolicited text messages at a phone number that she placed on the Do-Not-Call Registry is sufficient to confer standing.”

See that?

So the Complaint actually alleged that Plaintiff did receive the messages on the phone. That–even the Czar agrees–would confer standing under existing Ninth Circuit precedent. Yet the Hall panels, over extends and asserts that Plaintiff can sue even if someone else was using the phone.

But… why?

In the end one can argue that Hall is actually narrower than it appears. While the court states that the subscriber of the phone may sue regardless of whether he/she is using the phone at the time, the actual holding here is merely that Plaintiff alleged she received calls and that is sufficient to confer standing, which is not terribly controversial given Van Patten. 

In any event, the big news in my mind is the minor consent issue is now set for a determination by the lower court. In a footnote the appellate court confirmed these issues must be decided by the lower court:

Defendants claim Hall’s son solicited the text messages at issue here, by opting-in to receive automated promotional
messages through a webform. As discussed below, prior express consent is relevant to the merits of a TCPA claim,
not to Article III standing. Accordingly, we hold that even if Hall’s son solicited messages from the Defendants, Hall
has standing to litigate her TCPA claim as the subscriber and owner of the phone that received the messages. Whether
he in fact solicited the messages, and whether his consent would be legally sufficient under the TCPA, are inquiries
reserved for the merits.

Translation: district court, you figure this mess out.

So while I am dismayed by the loose language used by the panel to address standing, I am quite pleased that TCPAWorld will soon have an answer on the “statutory rape of a cell phone” theory.

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