Can a Minor Provide Consent for TCPA Calls?

TCPA Connect

The owner and subscriber of a cellphone listed on the National Do Not Call Registry has Article III standing to bring claims under the Telephone Consumer Protection Act (TCPA) for unsolicited calls or text messages directed to its number, even if the owner and subscriber is not the actual or customary user of the phone number or actual recipient of the calls.

Kristen Hall sued Smosh Dot Com and parent company Mythical Entertainment, alleging the defendants sent five text messages soliciting their merchandise to a cellphone number that she had placed on the Do Not Call Registry and provided to her 13-year-old son.

The defendants moved to dismiss the suit, arguing that Hall lacked standing because she failed to allege that she was the “actual user” of the phone or the “actual recipient” of the texts at issue.

A California federal court agreed and granted the motion, but the U.S. Court of Appeals for the Ninth Circuit reversed.

“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,” the court wrote.

Under Ninth Circuit precedent in Van Patten v. Vertical Fitness Group, the relevant question for Article III standing purposes is simply whether Hall has suffered a cognizable injury, the panel said.

“Because ‘a violation of the TCPA is a concrete, de facto injury,’ and the Do Not Call provisions of the TCPA proscribe unsolicited calls and text messages to phone numbers on the Do Not Call Registry, 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,” the court explained.

Hall also alleged that she found the texts “irritating, exploitative and invasive,” suggesting that she suffered the “precise” sort of nuisance and privacy deprivation the TCPA was enacted to address, the court added.

“Nothing in our precedent or the text of the TCPA suggests that the owner of a cellphone must also be the phone’s primary or customary user to be injured by unsolicited phone calls or text messages sent to its number in violation of the TCPA,” the Ninth Circuit said. “Requiring a heightened level of phone use as a prerequisite for standing is contrary to our prior recognition that ‘[r]eceiving even one unsolicited, automated text message from [a telemarketer] is the precise harm identified by Congress,’ and sufficient to state an injury in fact under Article III.”

The panel also noted that standing is not exclusive, and the fact that the primary or customary user of a phone may suffer a concrete injury from an unwanted call or text message does not preclude the phone’s owner and subscriber from suffering the same.

Although the defendants countered that Hall’s son solicited the text messages by signing up through an online form, the panel said the argument was relevant only to the merits of Hall’s claim, not to her standing to litigate it.

To read the opinion in Hall v. Smosh Dot Com, click here.

Why it matters

The Ninth Circuit took an expansive view of Article III standing, holding that the owner and subscriber of a phone number listed on the DNC Registry has suffered a concrete injury to bring suit—even if the communications were intended for or solicited by another individual and even if the owner and subscriber was not the actual recipient of the communications. On remand, the district court will consider whether Hall’s son did in fact solicit the messages and whether his consent would be legally sufficient under the TCPA.



pursuant to New York DR 2-101(f)

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