In Grigorian v. Fca Us Ltd. Liab. Co., No. 19-15026, 2020 U.S. App. LEXIS 38370 (11th Cir. Dec. 9, 2020), the Court of Appeals affirmed the District Court’s dismissal of a TCPA class action on standing grounds, declining to reach the issue of whether ringless voicemail technology is subject to the TCPA.

FCA manufactures motor vehicles and sells those vehicles to dealerships. In 2018, FCA contracted with a third party to transmit prerecorded calls to consumers to advertise FCA’s Chrysler Pacifica Hybrid minivan. Pursuant to this agreement, Grigorian’s and the putative class members’ cellular telephone numbers were purchased from a third party to use in advertising FCA’s vehicles. On July 17, 2018, Grigorian received [a]  prerecorded voicemail message on her cell phone. . .In addition to Grigorian, over 89,000 people received FCA’s prerecorded message. Grigorian alleged that neither she nor any member of the putative class consented to FCA contacting them via prerecorded marketing calls. The prerecorded voicemails were delivered through what the industry calls a “ringless” voicemail, meaning the ability to answer or block the phone call is bypassed because the messages are automatically deposited into the recipient’s voice mailbox. This technology operates like other automated processes for delivering prerecorded messages in that the transmission consists of a landline-to-landline connection between the text messaging platform and the cellular carrier’s short message service center. Grigorian filed this action on behalf of herself and all consumers who received FCA’s prerecorded message solicitations. She alleged that FCA’s unsolicited and prerecorded message caused her harm, including invasion of her privacy, aggravation, annoyance, and intrusion on seclusion. As a result of this harm, Grigorian sought injunctive relief and an award of statutory damages, as well as any legal or equitable remedies available as a result of FCA’s TCPA violations.

The 11th Cir. affirmed dismissal based on lack of standing.

To support that she has standing, Grigorian pointed to excerpts from her deposition testimony, among other things. Grigorian testified that she first became aware of the voicemail while she was studying for the Florida bar exam. She did not remember hearing her phone ring or hearing a sound to indicate she had a voicemail; rather, she saw the number 1 next to the voicemail icon. Grigorian said her phone was still able to receive data and calls, but she was not able to use her phone or access any other applications while she was listening to the voicemail. She did not incur any financial loss as a result of the voicemail. But she did incur a loss of time-Grigorian said she had to stop studying in order to listen to the voicemail, and she spent time afterwards trying to figure out how her information was obtained and why she was being called. . . Thus, because an unwanted call “uses some of the phone owner’s time and mental energy, both of which are precious,” the recipient of “more than one unwanted telemarketing call” has suffered an injury under the TCPA. . .Here, Grigorian has provided facts that she lost personal time listening to the voicemail. She has not, however, provided facts to show that the single prerecorded voicemail rendered her phone unavailable to receive legitimate calls or messages for any period of time. Without more, we cannot say that she met her burden to show she had standing, particularly in light of this Court’s holdings in Palm Beach Golf Center and Salcedo. And because “this court lacks the power to create jurisdiction by embellishing a deficient allegation of injury,” we must leave in place the district court’s dismissal of Grigorian’s case. SeeBochese, 405 F.3d at 976 (quotation marks omitted). In Palm Beach Golf Center, this Court agreed with the plaintiff’s theory that “the specific injury targeted by the TCPA is the sending of the fax and resulting occupation of the recipient’s telephone line and fax machine.” 781 F.3d at 1250 (emphasis added). We held that the plaintiff had Article III standing because the injury took “the form of the occupation of its fax machine for the period of time required for the electronic transmission of the data (which, in this case, was one minute).” Id. at 1251. This one-minute transmission occupied the plaintiff’s fax machine and rendered it “unavailable for legitimate business messages.” Id. at 1252 (quotation marks omitted) (alteration omitted)). This analysis may be different if a plaintiff alleges multiple ringless voicemails. See Salcedo, 936 F.3d at 1174 (Jill Pryor, J., concurring in judgment) (noting that Salcedo “leaves unaddressed whether a plaintiff who alleged that he had received multiple unwanted and unsolicited text messages may have standing to sue under the TCPA”). The parties argue over whether a “ringless” prerecorded voicemail is a call covered by the TCPA. However, because we may affirm on any ground that is supported by the record, we decline to reach this issue.