9th Cir. Says Owner and Subscriber of Phone with Number Listed on DNC Registry Suffered Injury-in-Fact under Art. III, Even if Calls Were Intended for Another Individual and Someone Else Used the Phone at the Time of the Call

In Hall v. Smosh Dot Com, Inc., No. 22-16216, 2023 WL 4281815 (9th Cir. June 30, 2023), the Court of Appeals for the 9th Circuit found Art. III standing for a phone subscriber suing under the TCPA for a DNC violation. Hall sued Dot Com and Mythical Entertainment, LLC for sending five text messages to a cell phone number that she had placed on the National Do-Not-Call Registry and provided to her thirteen-year-old son.  The district court dismissed the First Amended Complaint (“FAC”) for lack of Article III standing, reasoning that Hall failed to allege she was the “actual user” of the phone or the “actual recipient” of the five text messages at issue. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

Hall alleges that she was the owner and subscriber of the cell phone at issue, that she listed its number on the Do-Not-Call Registry “to obtain solitude from invasive and irritating solicitation calls,” and that Defendants sent five text messages to that number in a seven-month period. That is a cognizable injury under Van Patten. . . .Because Hall provided the phone to her son, Defendants argue that she has not suffered an injury, as she did not allege that she was “the actual user of the phone number to which Defendants sent the text messages [or] the actual recipient of those messages.” The district court agreed. We now reverse and hold that the owner and subscriber of a phone number listed on the Do-Not-Call Registry suffers an injury in fact when their phone receives text messages in alleged violation of the TCPA. . . .Nothing in our precedent or the text of the TCPA suggests that the owner of a cell phone 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. Requiring a heighted 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. See Chennette, 50 F.4th at 1222. Moreover, standing is not exclusive. 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. Cf. Krakauer v. Dish Network, LLC, 925 F.3d 643, 647 (4th Cir. 2019) (“If a wife, as the subscriber, lists a home telephone number on the Do-Not-Call registry, but her husband happens to be the one who receives the improper calls … [b]oth the wife and the husband can suffer the harm that Congress sought to deter.”). Finally, as noted above, Defendants claim that Hall’s son solicited the text messages by signing up through an online form. As relevant here, a telemarketer may contact a number listed on the National Do-Not-Call Registry if the telemarketer “has obtained the subscriber’s prior express invitation or permission,” as “evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.” 47 C.F.R. § 64.1200(c)(2)(ii). Determining whether such consent was provided “requires an analysis of the merits of [Hall’s] TCPA claim,” and has no bearing on the question of Article III standing. Wakefield, 51 F.4th at 1118 n.7. Accordingly, we hold that even if Hall’s son solicited messages from the Defendants, Hall has standing to bring her TCPA claim by virtue of her status as the subscriber and owner of the phone, and her allegation that the phone received unsolicited text messages in violation of the TCPA.9 Whether her son in fact solicited the messages, and whether his consent would be legally sufficient under the TCPA, are relevant only to the merits of Hall’s claim, not to her standing to litigate it. For the reasons discussed above, we hold that that the owner and subscriber of a cell phone listed on the Do-Not-Call Registry has Article III standing to bring claims under the TCPA for unsolicited calls or text messages directed to its number. Hall alleges that Defendants texted a phone number that she owned and subscribed to, contrary to the precise privacy expectations she vindicated by placing her number on the Do-Not-Call Registry. Nothing more is required. Cf. Van Patten, 847 F.3d at 1043 (“A plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.’ ” (quoting Spokeo, 578 U.S. at 342, 136 S.Ct. 1540)). The issues of whether Hall’s son consented to receive messages, and whether such consent would be sufficient to satisfy the TCPA, are reserved for the district court on remand. Accordingly, we reverse the dismissal of the FAC for lack of Article III standing, and remand for further proceedings consistent with this opinion.