6th Circuit Reverses Lower Court's Dismissal of TCPA Suit for Lack of Standing

Dickson brought his TCPA action against Direct Energy, alleging the electric and gas utility sent him multiple ringless voicemails (RVMs) advertising its services. Dickson claimed he was harmed by these communications because they tied up his phone line, cost him money and were generally a nuisance. He also said the calls disturbed his solitude and invaded his privacy. But the district court decided Dickson received only one RVM and dismissed his suit, saying Dickson suffered no concrete harm and therefore lacked standing.

But the 6th Circuit concluded that regardless of the number of RVMs Dickson received, “his asserted injury bears a close relationship to one recognized at common law,” said the opinion. “We further find that Direct Energy caused Dickson precisely the type of harm Congress sought to address through the TCPA,” it said. “Accordingly, Dickson suffered a concrete injury for purposes of Article III standing.”

The 6th Circuit hasn’t 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,” said the opinion. “Here, we find that Dickson’s claims satisfy the demands of Article III because his alleged injury under the TCPA constitutes a concrete harm,” it said.

To determine whether an intangible harm, such as Dickson’s receipt of an unsolicited RVM, rises to the level of a concrete injury, courts may look to “history and tradition” and Congress’s judgment “in enacting the law at issue,” said the opinion. Dickson argues his receipt of an unwanted RVM “resembled the common law tort of intrusion upon seclusion,” it said.

Courts at common law recognized through this tort the right to be left alone, said the opinion. “Broadly speaking, unwanted telephone communications can qualify as injuries under this common law doctrine,” it said. Direct Energy placed an unsolicited call to Dickson’s phone to publicize its services, “interjecting itself into Dickson’s private sphere,” it said. “This implicates Dickson’s common-law right to seclusion.”

The 6th Circuit’s conclusion “aligns with numerous decisions in which courts have found invasion-of-privacy-like harms flowing from unwanted telephonic communications,” said the opinion. Direct Energy insists any harm Dickson may have personally suffered “is insufficiently analogous to the tort of intrusion upon seclusion to state a claim,” it said: “Its arguments are unpersuasive.” Direct Energy “offers no authority for its postulation that Dickson must present proof of any further indicia of privacy,” it said.

On the issue of congressional judgment as it factors into determining concrete injury, Congress enacted the TCPA “after finding that unrestricted telemarketing practices harm consumers,” said the opinion. “The law is intended to protect from invasions of privacy wrought by unauthorized automated and prerecorded calls,” it said. Dickson alleges he received an unsolicited marketing call from Direct Energy, and also “validly maintains that receipt of this message invaded his privacy,” it said. “His injury therefore falls within the ambit of what Congress deemed to be an actionable harm when it enacted the TCPA.”

In declining Dickson’s request for reassignment to a judge other than Adams on remand, the issue wasn’t “properly presented to the court,” since it was raised for the first time in Dickson’s reply brief, said the opinion. “In any case, Dickson failed to establish why this extraordinary remedy would be appropriate here,” it said. Though Dickson asserts Adams can’t “fairly preside” over his claims on remand, there’s “no reason to believe” the judge will have substantial difficulty setting aside his previous finding that Dickson suffered no concrete harm on remand, “and in keeping with our ruling here,” it said.