Many people no longer answer their phones since they assume, most often correctly, that there is a spam caller on the other end. It wasn’t supposed to be that way. The Telephone Consumer Protection Act of 1991 (TCPA) was signed into law by President George H.W. Bush to restrict automated telemarketing calls, electronic dialing systems, and prerecorded voice messages.

Under the TCPA, the Federal Communications Commission (FCC) was charged with prohibiting unwanted solicitations, but their efforts were ineffective since they required anyone who wanted to stop the annoying calls to contact each telemarketer. In 2003, the Federal Trade Commission took over enforcement and established a national “Do-Not-Call” (DNC) Registry that prohibits and enforces unwanted solicitation to subscribers. Kristin Hall, the plaintiff in Hall v. Smosh Dot Com, Inc. and Mythical Entertainment LLC is one of those subscribers. And, the TCPA provides her “a private right of action to redress unsolicited calls.”

Specifically, the TCPA gives this right to any “residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government.” The law clarifies that “Such do-not-call registrations must be honored indefinitely, or until the registration is canceled.”

Hall sued Smosh Dot Com for sending five text messages to a DNC-registered cell phone that she had given to her 13-year-old son. She sued the telemarketer for violating DNC rules, but Presiding District Judge John. A. Mendez of the U.S. District Court for the Eastern District of California ruled that Hall lacked Article III standing because she was not the “actual user” of the phone or the “actual recipient” of the unwanted text messages. She appealed.

Hall admitted that she allowed her son to use the registered phone “at times,” but clarified that she registered with the DNC “to obtain solitude from invasive and irritating solicitation calls and to protect her minor son from being inundated with advertisers and data-miners.”

In a unanimous 3-0 opinion on June 30, a panel of the Ninth Circuit Court of Appeals disagreed, reversing Mendez and remanding her case for further action. Although it was Hall’s son who received the texts, the appellate court ruled that the mother, as well as the son, had suffered an injury that was sufficient enough to grant her standing. The opinion was written by Senior District Judge Richard D. Bennett with concurrences by Circuit Judges Michelle T. Friedland and Mark J. Bennett.

Bennett began the opinion by citing a previous Ninth Circuit ruling that “held the receipt of unsolicited phone calls is a concrete injury in fact sufficient to confer Article III standing… because unsolicited telemarketing call or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” But in this case, it was not the subscriber herself, but her son, who received the calls. Bennett therefore summarized the main issue. He said, “This case presents the question whether the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry, who may not be the phone’s primary user, suffers an injury in fact when the phone receives unsolicited text messages.” Hall, he wrote, suffered a “concrete, de facto injury” even though the communication was intended for another who was using the phone when it was delivered.

The opinion then provided background information on Smosh Dot Com, which is a 16-year-old company that produces “sketch comedy videos and sells merchandise for an adolescent audience.” Hall’s amended complaint explained that the defendants received “personal information” about her son in November 2019. Defendants claim the son had “Opted-in” to receive these messages, so they sent him a number of texts offering their merchandise at a discount. Defendants claimed that when the son opted-in, he in fact solicited the messages and therefore there was no TCPA violation.

The court was not persuaded and said that the son’s actions had “no bearing” on the key standing issue. “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,” Bennett wrote.

Bennett then addressed the key standing issue. To obtain standing, he explained, a plaintiff must “have suffered an injury in fact that is fairly traceable to the challenged conduct of the defendant and is likely to be redressed by a favorable judicial decision.” He summarized that the only disputed issue in this case is whether Kristin Hall “suffered an injury in fact and concluded that “Precedent holds that “unsolicited telemarketing phone calls or text messages” in violation of the TCPA are “a concrete injury in fact sufficient to confer Article III standing.” He clarified that meeting this standard “requires that the party seeking review… be among the injured.” Even though she was not the one who actually received the defendants’ texts, she still suffered an injury.

The opinion further found that “Nothing in our precedent of 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.” He added that “Requiring a heightened level of phone use as a prerequisite for standing is contrary to our prior recognition that “receiving even one unsolicited, automated text message from is the precise harm identified by Congress,” and is sufficient to be an injury in fact under Article III…Moreover, standing is not exclusive.”

Hall will get her day in court. The other issues in the case, primarily those dealing with whether her son’s consent to get the messages would exempt it from the TCPA, will be considered on remand. Parents who subscribe to the DNC Registry should be pleased to learn they will have standing to sue for unwanted messages aimed at their children. But they should also closely monitor what their minor children do when one of those messages finds and perhaps entices them to buy unwanted merchandise.