Nathaniel Kinman, Associate Member, University of Cincinnati Law Review
Consider the following scenario: You are midway through a busy workday, prioritizing client and job-related calls while similarly dealing with obligatory family matters. After a lengthy, contentious conference call, you realize you have an unread voicemail from an unknown number. You do not recall hearing your cell phone ring, and uneasiness comes over you as you contemplate the potential substance of the voicemail. Is your child sick at school? Perhaps a client called with an urgent matter. Rather than proceed through your workday, you press play and put your ear to the phone. Worry turns sharply to anger when you realize it is an automated robocall proclaiming your vehicle’s warranty expired and immediate action is needed. You end up searching the unknown number and trying to figure out how your personal cell phone number ended up on a telemarketer’s list.
Sound familiar? Like most Americans, unwanted telemarketing/robocalls likely represent a seemingly unavoidable, common occurrence. Fortunately, through the Telephone Consumer Protection Act (TCPA), Congress expressly prohibited and made it unlawful for persons “to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice.” Though subject to exceptions, the TCPA reflected a concern for the intrusive nature of soliciting phone calls and their impact on an individual’s privacy within the home. However, as courts attempt to interpret the TCPA commensurate with changing technology, they diverge on what constitutes sufficient standing to bring a claim.
Accordingly, this article examines whether the receipt of a ringless voicemail sufficiently confers Article III standing for the purposes of bringing a TCPA violation claim. Part II discusses the evolution of standing under the TCPA as well as the current split of authority relating to whether ringless voicemails present concrete harm. Next, this article argues that privacy concerns inherent to the TCPA favor a more inclusive interpretation of concrete harm to confer the standing necessary to bring a TCPA claim. Lastly, this article summarizes the varying authorities and suggests courts should consider consumers’ privacy expectations that relate to the unique nature of modern cell phones.
To more inclusively discuss standing issues related to the TCPA, this section first gives a brief overview of the role standing plays in ensuring a court has jurisdiction to rule on the merits of a claim. Next, this section evaluates how several courts have addressed the sufficiency standing as it relates to TCPA violation claims, thus informing the current split of authority regarding ringless voicemails.
A. Basic Standing
Article III of the United States Constitution limits federal judiciary power to cases and controversies, and the doctrine of standing refers to the mechanism by which the court identifies issues that are justiciable and therefore “appropriately resolved through the judicial process.” Article III standing, at a minimum, thus requires the satisfaction of the following three elements: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Courts have noted that the injury-in-fact consideration is the principal element to the Article III standing inquiry. Such an injury must be “concrete and particularized.” Additionally, the injury must be identifiable “as opposed to being hypothetical or speculative.” For the purposes of the TCPA, the question then becomes whether receipt of a single ringless voicemail musters up enough of an identifiable, concrete injury to sufficiently confer Article III standing, providing the court with proper authority to hear the matter.
B. Competing Standards of TCPA Standing
1. Eleventh Circuit
In 2019, the Eleventh Circuit considered whether the receipt of a single unsolicited text message constituted sufficient concrete harm to confer standing under the TCPA. There, the plaintiff alleged that receiving the text message wasted his time and made his cell phone unavailable for other legitimate purposes in addition to invading his privacy. Considering its prior precedent, the court compared the allegations to a similarly situated plaintiff that successfully established standing by alleging his receipt of a junk fax took up valuable time his fax machine could otherwise be receiving business-related messages.
The court inevitably found the receipt of a text message to be distinct from the unavailability of receiving an unwanted junk fax. Unlike a fax machine, the court reasoned that receiving a text message does not entirely limit a cell phone’s function and does not procure the same degree of harm. Regarding the plaintiff’s privacy, the court concluded that broad freedom from robocalls was not the privacy interest contemplated by Congress when it enacted the TCPA. Because Congress was concerned with privacy in one’s home, the court found that a cell phone’s mobility and ability to silence presented a lower degree of harm to a plaintiff than that of a home phone, which was insufficient to form an injury-in-fact under the TCPA.
2. District Court for the Northern District of Ohio
Regarding whether the receipt of a single ringless voicemail constituted sufficient harm to confer Article III standing under the TCPA, the Court for the Northern District of Ohio found that merely reviewing a transcribed ringless voicemail, without more, did not give rise to proper standing. The court’s conclusion rested on the specific allegations of harm, that amounted to nothing more than the time it took the plaintiff to read the transcribed voicemail. While the court noted that receipt of a ringless voicemail posed similar injuries to the receipt of a single unwanted text message, the court did not discuss how invasion of the plaintiff’s privacy interest played into the injury-in-fact equation. In short, the plaintiff’s time wasted reading the transcription was insufficient harm to form adequate standing under the TCPA.
3. District Court for the Northern District of Georgia
Taking the opposite position, the Court for the Northern District of Georgia concluded that a plaintiff enduring an unwanted prerecorded voicemail constituted a sufficient injury-in-fact to give the TCPA claim Article III standing. The court noted that voicemails are distinguishable from other forms of media communication like text messages and pose an intrusion similar to that of a fax machine being entirely consumed by processing a junk fax. Accordingly, the court reconciled that the plaintiff “alleged a concrete harm because her phone was tied up while she was receiving and listening to the voicemail.” Further, the court recognized that for some people, voicemails received at work often create a more substantial intrusion than those received in the home because the time it takes to address the messages detracts from one’s job duties and interrupts focus.
While courts have grappled with how to measure what constitutes an injury-in-fact for purposes of articulating Article III standing under the TCPA, reasonable minds also seem to differ on whether a person’s wasted time reviewing ringless voicemails is a concrete harm. Nonetheless, given that taking the time to listen to a voicemail and having a fax machine tied up with a junk fax present congruent losses in opportunity cost, receiving and having to listen to unwanted ringless voicemails should constitute a concrete harm remedied by the TCPA. Further, against the backdrop of privacy interests inherent to the TCPA, the receipt of ringless voicemails on a personal cell phone likely poses a greater intrusion than one experiences in her home and should therefore sufficiently satisfy the injury-in-fact inquiry.
Indeed, just as the receipt of a junk fax makes the machine unavailable for otherwise legitimate business purposes, so too does a ringless voicemail. Unlike receiving a text message, a voicemail likely requires the listener’s attention and fully occupies the use of one’s cell phone just like the receipt of an unwanted fax. Even if the user’s phone still has the capacity to function during the time it takes to listen to the voicemail, it makes no difference in terms of the user’s ability to spend time on productive business.
If the utility of the communication device is the sole measure of concrete harm, such an analysis ignores both the actual and opportunity costs that are lost when one’s full attention is diverted away from productive activities by having to listen to a robocall voicemail or read a junk fax. For example, in professions where compensation is dictated by the amount of time spent working on a particular matter, how many millions of dollars are lost by individuals spending working time to listen to robocall voicemails when aggregated across the United States? Given that one of the TCPA’s primary purposes is to promote interstate commerce, limiting its applicability in this way serves only to dilute its overall function.
Likewise, the receipt of ringless voicemails represents the intrusion of privacy contemplated by Congress when it enacted the TCPA. Unsurprisingly, Congress’ concerns revolved around the invasion of privacy into one’s personal home when enacting the TCPA. Congress similarly recognized that unwanted telemarking calls require attention, as a telephone ringing usually requires answering. It is true, a personal cell phone can be taken out of the home, but suggesting that a cell phone’s mobility necessarily eliminates the intrusion of privacy ignores other areas where courts recognized inherent privacy concerns related to cell phones.
For example, the Supreme Court has held that police officers must obtain a search warrant prior to searching the contents of an individual’s cell phone. Why? In relevant part, the fact that most Americans keep an intimate digital record of their lives on a cell phone, more than which would be present in any home, creates an expectation of privacy protected against unreasonable search and seizure. If the TCPA fails to remedy intrusions into this area where consumers have a reasonable expectation of privacy, the TCPA’s utility will be undermined and individuals promulgating the intrusions will be further encouraged without a proper deterrent.
The current split of authority on whether the receipt of a ringless voicemail constitutes a sufficient injury-in-fact to confer standing under the TCPA necessarily indicates that the statute needs modernization. In the absence of further guidance from the Supreme Court or legislative action retrofitting consumer protection, courts deciding the issue should consider the privacy concerns inherent in the TCPA’s construction. Specifically, courts should navigate the injury-in-fact inquiry under the TCPA bearing in mind the unique role modern cell phones play in consumers’ expectations of privacy. Without further clarity, the TCPA’s utility might be underserved by the more limited interpretation of a concrete harm’s sufficiency to confer Article III standing.
 U.S. Phones Were Hit by Over 3.9 Billion Robocalls in January, Says YouMail Robocall Index, Cision PR Newswire (Feb. 3, 2022), https://www.prnewswire.com/news-releases/us-phones-were-hit-by-over-3-9-billion-robocalls-in-january-says-youmail-robocall-index-301474526.html (“In January, Americans received over 3.9 billion robocalls, putting 2022 on pace to hit roughly 47 billion robocalls for the year. This call volume marked a 9.7% increase from December.”).
 47 U.S.C. § 227(b)(1)(A).
 See Salcedo v. Hanna, 936 F.3d 1162, 1169 (11th Cir. 2019).
 See Dickson v. Direct Energy, LP, No. 5:18CV182, 2022 U.S. Dist. LEXIS 54750, at *3-5 (N.D. Ohio Mar. 25, 2022) (discussing that the Second, Seventh, and Ninth Circuits disagree with the Eleventh Circuit as to whether receipt of an unsolicited text messages constitutes sufficient Article III standing to bring a TCPA claim).
 See Irela Aleman, Ringless Voicemails: How an Emerging Unregulated Technology May Hinder the Intent of Telephone Consumer Protection Act of 1991, 71 Fed. Comm. L.J. 253 (2019) (“Ringless voicemails have been defined by leading providers of ringless voicemails as direct automated insertions of a voicemail into a voicemail box without first contacting the consumer.”) (citation omitted).
 U.S. Const. art. III; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
 Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal quotation omitted)).
 Salcedo v. Hanna, 936 F.3d 1162, 1169 (11th Cir. 2019) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016); Lujan, 504 U.S. at 560-61 (internal quotation omitted).
 Grigorian v. FCA US LLC, 838 F. App’x 390, 392 (11th Cir. 2020) (citing Hallums v. Infinity Ins. Co., 945 F.3d 1144, 1147 (11th Cir. 2019)).
 Lujan, 504 U.S. at 560 (citing Allen v. Wright, 468 U.S. 737, 756 (1984); Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41, n. 16, 31 (1972)).
Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th Cir. 2019) (quoting Spokeo, 163 S. Ct. at 1548).
 Id. at 1167.
 Id. at 1167 (citing Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015)).
 Id. at 1168.
 Id. at 1170.
 Dickson v. Direct Energy, LP, No. 5:18CV182, 2022 U.S. Dist. LEXIS 54750, at *7 (N.D. Ohio Mar. 25, 2022).
 Id. at *9.
 Id. at *7-8 (quoting Garcia v. FCA US, LLC, No. 2:19-CV-12750, 2020 U.S. Dist. LEXIS 91870, 2020 WL 2711556, at *1 (E.D. Mich. May 26, 2020)).
 Drake v. Firstkey Homes, LLC, 439 F. Supp. 3d 1313, 1323 (N.D. Ga. 2020).
 Id. at 1322 (citing Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019)).
 Id. at 1323.
 Compare id. at 1322 (“This Court finds that Plaintiff has alleged a concrete injury of wasted time where she received and listened to a prerecorded voicemail lasting over 30 seconds.”), with Salcedo, 936 F.3d at 1168 (finding that general allegations of wasted time, without more, do not amount to a concrete harm).
 See Salcedo, 936 F.3d at 1170.
 Cf. Grigorian v. FCA US LLC, 838 F. App’x 390, 394 (11th Cir. 2020) (“[Plaintiff] 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[.]”).
 Aleman, supra note 5, at 257 (citing S. Rep. No. 102-177, at 1).
 See Salcedo, 936 F.3d at 1166 (citing Telephone Consumer Protection Act of 1991, S. 1462, 102d Cong., Pub. L. No. 102-243, § 2, ¶ 10 (1991)); see also Aleman, supra note 5, at 257 (“[T]he Act was created to protect the privacy interests of telephone subscribers . . .”) (citing S. Rep. No. 102-177 at 1).
 See Salcedo, 936 F.3d at 1170 (quoting Pub. L. No. 102-243, § 2, ¶ 5).
 Aleman, supra note 5, at 257 (quoting S. Rep. No. 102-177, at 19).
 See Riley v. California, 573 U.S. 373, 403 (2014).
 See Id. at 395-97 (citing Ontario v. Quon, 560 U. S. 746, 760 (2010)).
 See Aleman, supra note 5, at 256.