A plaintiff did not have Article III standing to assert claims under the Telephone Consumer Protection Act (TCPA) for alleged autodialed calls made to her without her consent, a California federal district court recently ruled.

In Romero v. Department Stores National Bank, et al., the plaintiff alleged that she received more than 290 collection calls to her cellular phone from the defendants that were made with an automated telephone dialing system (ATDS) after she had revoked her consent to such calls. Previously, in Spokeo, Inc. v. Robins, the U.S. Supreme Court held that, to satisfy the "injury in fact" requirement under Article III, a plaintiff must show that he or she suffered "an invasion of a legally protected interest" that is both "concrete" and "particularized." The district court determined that, because the plaintiff was seeking TCPA statutory damages of $500 for each call, she needed to show "evidence of an injury in fact specific to each call, and not in the aggregate based on the total quantity of calls."

According to the court, while the plaintiff’s alleged receipt of calls in violation of the TCPA may have satisfied the "particularized" requirement for Article III standing, she still needed to establish concrete injury caused by the violations. Although the court indicated that the lost time, aggravation, and distress allegedly suffered by the plaintiff "could possibly be" an injury in fact for standing purposes, it stated that invasion of privacy was not an injury in fact sufficient for standing.

To evaluate whether the plaintiff suffered concrete injury, the court divided the calls into three categories which it analyzed as follows:

• Calls the plaintiff did not hear ring. The court observed that for the plaintiff to have suffered any injury from such calls (such as lost time, aggravation, and distress) "she must, at the very least, have been aware of the call when it occurred." The court ruled the plaintiff lacked standing to assert a TCPA violation based on any such calls because she "has not, and likely could not, present evidence of an injury in fact as a result of calls placed by Defendants…of which [she] was unaware."
• Calls the plaintiff heard ring but did not answer. The court observed that "[v]iewing each call in isolation," no such call could have caused the plaintiff a concrete injury because "[n]o reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing."
• Calls the plaintiff answered. As to the two answered calls on which the plaintiff based TCPA claims, the court observed that the plaintiff "does not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA." The court found that because the plaintiff did not suffer an injury in fact traceable to the alleged TCPA violations, she lacked standing to make a TCPA claim for any calls she answered.

The court also observed that "the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged TCPA violations." It stated that "[a]lthough these calls seeking to collect debts may have been stressful, aggravating, and occupied Plaintiff’s time, that injury is completely unrelated to Defendants’ use of an ATDS to dial her number. Plaintiff would have been no better off had Defendants dialed her number manually."

While other courts that have so far addressed the application of Spokeo to TCPA claims have concluded that a consumer’s receipt of unwanted autodialed cell phone calls and the resulting invasion of privacy are sufficient to confer Article III standing, we believe Romero is correctly decided for three reasons. First, Romero explains that standing has to be established for each alleged violation and has to be connected to the alleged harm (for example, showing that use of an ATDS was more invasive than manually dialed calls). Second, the decision recognizes that invasion of privacy is not a harm in itself. Third, the ruling recognizes that even if invasion of privacy was a harm, simply receiving an unwanted phone call, or, more critically, receiving a call without knowing it was made or not answering a call, could not invade a consumer’s privacy.