Eleventh Circuit Doubles Down on Drazen II, Applies It to FTSA

TCPA Connect

A single text is sufficient to establish standing for purposes of the Florida Telephone Solicitation Act (FTSA), the Eleventh U.S. Circuit Court of Appeals recently held in an unpublished per curiam opinion, doubling down on its change of heart in the en banc Drazen II decision.

In his complaint, Stephen Muccio alleged that Global Motivation and its owner sent him and at least 100 other individuals five unsolicited text messages in violation of the FTSA and the Telephone Consumer Protection Act (TCPA).

The district court granted the defendants’ motion to dismiss, relying on Salcedo v. Hanna and Drazen v. Pinto, which held that the receipt of a single call or text message was insufficient to establish standing.

Muccio appealed from the dismissal.

In the interim, the en banc Eleventh Circuit vacated the panel opinion in Drazen and reversed its stance on standing, holding in Drazen II that the receipt of a single text message is sufficient to establish Article III standing for purposes of a TCPA lawsuit.

“We then explained ‘the Constitution empowers Congress to decide what degree of harm is enough so long as that harm is similar in kind to a traditional harm,’” the Court explained. “‘[T]he harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of intrusion upon seclusion.’ As a result, ‘the receipt of an unwanted text message causes a concrete injury.’”

That principle applies with equal force to the FTSA, the panel said.

The Eleventh Circuit did not fault the district court’s reliance on past precedent but, with the benefit of Drazen II, concluded that Muccio had standing to bring his claims and reversed and remanded the action for further proceedings.

To read the opinion in Muccio v. Global Motivation, Inc., click here.

Why it matters

Having reversed its position that the receipt of a single call or text was insufficient to establish standing—and joining the majority of other federal appellate courts, including the Second, Third, Fourth, Sixth, Seventh, Ninth and Tenth Circuits—the Eleventh Circuit applied the holding to the FTSA, expanding liability for defendants in Florida.



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