In Spencer Ung v. Universal Acceptance Corporation, 2016 WL 4132244, at *2–3 (D.Minn., 2016), Judge Kyle rejected a Spokeo challenge to a TCPA claim.
Although Spokeo did not determine whether the plaintiff had suffered an injury sufficient to confer standing to sue, Universal nevertheless cites it to argue Ung has not suffered a sufficient concrete injury here. Cases, however, have repeatedly recognized that the receipt of unwanted phone calls constitutes a concrete injury sufficient to create standing under the TCPA. See, e.g., Caudill v. Wells Fargo Home Mtg., Inc., Civ. No. 5:16-066, 2016 WL 3820195, at *2 (E.D. Ky. July 11, 2016) (noting that calls caused harms “such as the invasion of privacy [that] have traditionally been regarded as providing a basis for a lawsuit in the United States”); Rogers v. Capital One Bank (USA), N.A., No. 1:15-CV-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016) (rejecting argument plaintiffs lacked standing under TCPA where they alleged “the Defendant made unwanted phone calls to their cell numbers”); Mey v. Got Warranty, Inc., __ F. Supp. 2d __, 2016 WL 3645195, at *7 (N.D. W. Va. 2016) (collecting cases); see also, e.g., Cour v. Life360, Inc., Civ. No. 16-805, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016) (receipt of single unauthorized text message sufficient to create standing under TCPA). Indeed, Universal correctly notes that both Congress (in passing the TCPA) and the Federal Communications Commission (when interpreting the statute) have recognized the harms inherent in the receipt of automated calls, in particular the invasion of privacy and the intrusion upon seclusion. (See Def. Mem. at 8-10.) And Universal does not seriously quibble with the notion that receipt of autodialed calls constitutes an invasion of privacy sufficient to create standing. Rather, Universal’s argument is more nuanced. It contends the TCPA is intended only to remedy calls placed by an “automatic telephone dialing system,” 47 U.S.C. § 227(b)(1)(A)(iii), but the FCC has interpreted that term to include equipment with the capacity to place automated calls. In other words, according to the FCC, a defendant may transgress the statute by manually dialing an unwanted phone call, as long as the system used to make the call has the capacity to autodial. Universal claims that is precisely what happened here: it “called Plaintiff twelve times [and] the evidence shows[ ] these calls were made by a live person who manually placed the calls to Plaintiff’s phone number.” (Def. Mem. at 2.) As a result, Universal argues that Ung can demonstrate, at most, only the type of “bare procedural violation” insufficient to create standing under Spokeo, since the prevention of manually dialed calls was not the TCPA’s aim. Ung hotly contests whether the calls he received from Universal were manually dialed rather than autodialed. But the Court need not wade into that dispute at this juncture, because assuming arguendo the calls were placed manually, Ung still has standing to sue. This is because Universal’s argument conflates the means through which it (allegedly) violated the TCPA with the harm resulting from that alleged violation. An example best makes this clear. Assume that a plaintiff sued after receiving only one unwanted phone call from the defendant. In that instance, how would the plaintiff’s harm differ if he had received a manually dialed call placed on equipment capable of autodialing versus a call that was in fact autodialed? In either case, the plaintiff received only one call, and hence the alleged invasion of his privacy would have been precisely the same. While the injury in such a situation might well be minimal, it is enough to clear Article III’s low bar for a concrete injury. See, e.g., Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015) (receipt of one junk fax sufficient to confer standing); Rogers, 2016 WL 3162592, at *1 (plaintiff had standing after receiving two phone calls); Cour, 2016 WL 4039279, at *2 (single unsolicited text message sufficient); Meyer v. Bebe Stores, Inc., Civ. No. 14-267, 2015 WL 431148, at *1-2 (N.D. Cal. Feb. 2, 2015) (same); see also Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 988 (8th Cir. 2011) (although a concrete injury must actually exist, it need not “be large[;] an identifiable trifle will suffice”) (citation omitted); Coalition for Env’t v. Volpe, 504 F.2d 156, 168 (8th Cir. 1974) (when evaluating standing, the court does not “consider the weight or significance of the alleged injury, only whether it exists”). The manner in which the call was placed has no bearing on the existence of the injury; the use of an autodialer might increase the possibility of a plaintiff receiving hundreds or thousands of phone calls, thus perhaps increasing the extent of the invasion of his privacy, but it is the fact of the call (or calls) that creates the injury sufficient to confer standing. See Cour, 2016 WL 4039279, at *2 (“[S]uch distinctions go only to the extent of the injury, not whether there was a concrete injury at all.”). In this Court’s view, therefore, it makes no difference whether the calls Ung received were manually dialed or autodialed because the resultant harm is the same. And that alleged harm is a concrete injury-in-fact sufficient to confer standing