In Romero v. Department Stores National Bank, 2016 WL 4184099, at *5–6 (S.D.Cal., 2016), Judge Bencivengo distinguished the types of calls that may afford Spokeo standing in a TCPA case.

The Court is therefore unpersuaded by the reasoning of the various other district court decisions since Spokeo that have found that the plaintiffs had suffered a concrete injury and therefore had standing under the TCPA. Most of these cases consider the calls received by the plaintiff as a whole instead evaluating standing separately for each call alleged to violate the TCPA. See, e.g., Caudill v. Wells Fargo Home Mortg., Inc., No. 5:16–066–DCR, 2016 WL 3820195 (E.D.Ky. Jul. 11, 2016); Mey v. Got Warranty, Inc., ––– F.Supp. 3d ––––, No. 5:15–CV–101, 2016 WL 3645195 (N.D.W.V. Jun. 30, 2016); Booth v. Appstack, Inc., No. C13–1533JLR, 2016 WL 3030256, at *5 (W.D.Wash. May 25, 2016). Meanwhile, in another case, the court appeared to hold that a plaintiff who receives a call on his cell phone that violates the TCPA has suffered a concrete injury simply because the call violated the TCPA. See Rogers v. Capital One Bank (USA), N.A., ––– F.Supp.3d ––––, No. 1:15–CV–4016–TWT, 2016 WL 3162592, at *2 (N.D.Ga. Jun. 6, 2016). This reasoning is circular. Under Spokeo, if the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing. See Spokeo, 136 S.Ct. at 1547–48 (“Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”) (quoting Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). As discussed above, the mere dialing of a cellular telephone number using an ATDS, even if the call is not heard or answered by the recipient, does not cause an injury to the recipient. That the TCPA allows private suits for such calls does not somehow elevate this non-injury into a concrete injury sufficient to create Article III standing.

The District Court also distinguished for standing purposes the harm caused by an unwanted call from an unwanted call placed by an ATDS.

Moreover, the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged TCPA violations. Defendants here were creditors of Plaintiff and were attempting to collect a debt. They were calling Plaintiff’s cell phone because that was the only telephone number she provided them. Although 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 telephone number manually. “A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.1998). Further, that the use of an ATDS may have allowed Defendants to call a greater number of debtors more efficiently did not cause any harm to Plaintiff. See Silha v. ACT, Inc., 807 F.3d 169, 174–75 (7th Cir.2015) (“[A] plaintiff’s claim of injury in fact cannot be based solely on a defendant’s gain; it must be based on a plaintiff’s loss.”). In other words, to use the language from Spokeo, Plaintiff’s alleged concrete harm was divorced from the alleged violation of the TCPA. See Spokeo, 136 S.Ct. at 1549 (holding that “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III”). Accordingly, Plaintiff has not and cannot satisfy the injury-in-fact requirement of Article III.