The Epistemology of a Nuisance Defending Against Manufactured Telephonic Disturbance
What constitutes a real legal nuisance in the world of modern digital communications? The common law understanding of nuisance is essentially the unreasonable, substantial invasion of another person’s private use and enjoyment of his life and property. The drafters of the TCPA envisioned a digital embodiment of this traditional concept, seeking to shield the public from the uninvited invasion of the automated telephone line, but it makes no sense philosophically or legally to label a true “nuisance” the actions of a person who has actively worked to invite, receive and collect such calls in a commercially-driven manner, creating a physical grid for the purpose of logging and profiting from them. This principle of genuine injury has now become a cornerstone of corporate defense against professional plaintiffs with their multitude of lawsuits.
In understanding what defines an unsolicited telephone call as a concrete injury, one might look to an authority on such matters, such as a veteran attorney spending decades shielding corporations against an onslaught of class-action complaints. In reviewing the trend of litigation as depicted in image_3fafb9.png, an experienced Reed Smith LLP partner in the Chicago office, Henry Pietrkowski, noted the volume and trends his firm deals with regularly (dozens of cases each year); what he and other attorneys on his practice have witnessed is a trend in these suits move away from old telephone-faxes to the modern automated mobile telephone calls and mass texts.
As Pietrkowski also put it, although the courts have generally been clear in ruling that the small inconveniences associated with such automated calls, a drained cell phone battery, incoming text message charges, or minor interference with one’s ability to enjoy her privacy constitute an arguable, if minimal, concrete injury, Melody Stoops’ suit presented an altogether different situation. “But Stoops’ lawsuit takes the cake,” Pietrkowski remarked. “Here, this woman collected a shoebox full of cell phones for the purpose of bringing TCPA claims. Congress never intended for a person who wanted these kinds of calls to have standing.”
What these points directly point to is the law on intent and consent. An individual can no longer have her cake and eat it too, so to speak. A consumer may not be able to claim that a telephone communication constituted an invasion of her privacy and personal comfort when she actively requested to receive that communication, or, worse, had taken active steps to create and maintain a large network of prepaid phones to log as many of those calls as possible with the sole purpose of filing lawsuits based upon those calls.
As one illustration, Pietrkowski posed this brilliant common-sense example in order to provide a perspective from which to view telephonic disturbance from our cell phones; he stated, “What if you don’t actually know you’re getting a call? What if you put a call block app on your phone or put your phone on silent?” When such is the case, the call recipient has absolutely no knowledge of the attempted telephone contact. “Then you have no idea the calls are being made. You look and see there are missed calls, but you’re not being bothered.
So, is that a concrete injury? Spokeo said no, that’s not good enough to be a concrete injury.” This statement in fact entirely undoes the rationale behind the numerous claims of those professional litigators, who often have dozens of telephones left silent to pile up in their shoeboxes in anticipation of an opportunity to retrieve calling information to then incorporate into demand letters, having made absolutely no actual psychological or emotional disturbances from such calls and therefore experiencing no concrete injury at all because they took no real notice of any communication, however automatic it may have been in creation, having actually chosen to prevent any sort of meaningful interference or notice, however slight or otherwise negligible; by leaving a quiet telephone unattended in a shoebox, one is basically deciding that he or she cannot have their cake and eat it too.
Following Judge Gibson’s summary judgment dismissal based on a lack of constitutional standing, Stoops tried to find a procedural solution. She filed a motion to amend judgment, arguing that by finding a lack of constitutional standing, the federal court overstepped its jurisdiction and thus could only remand the case to the state courts in Pennsylvania, where the state’s standards on standing may be far more lax. Just days later, that motion to amend judgment was shot down by Judge Gibson, further locking down the summary judgment win for the defense. This judicial stonewalling stands as a warning to professional litigators who have attempted to make a name out of their manufactured telephone claims, as federal courts will not allow them to simply use a federal forum as a testing ground only to pack up and return home if a legal impediment presents itself.
