Noreen Susinno v. Work Out World Inc, 2017 U.S. App. LEXIS 12253

On July 28, 2015, Noreen Susinno received an unsolicited prerecorded promotional voicemail on her cell phone from Work Out World (WOW); she did not answer the call.
Susinno sued in the District of New Jersey under the TCPA, alleging violation of 47 U.S.C. § 227(b)(1)(A)(iii) (prohibition on prerecorded calls to cellular numbers).
WOW moved to dismiss for lack of subject-matter jurisdiction, arguing (inter alia) that a single prerecorded call for which the recipient was not charged falls outside the TCPA and that Susinno lacked Article III standing.
The District Court dismissed, finding a single solicitation was not the kind of harm Congress sought to prevent and that Susinno suffered no concrete injury; Susinno appealed.
The Third Circuit reviewed statutory interpretation and standing de novo and framed the appeal as two questions: (1) whether the TCPA covers the alleged call and (2) whether Susinno’s alleged harm is a concrete injury for Article III purposes.
The Third Circuit held the TCPA does provide a cause of action for the alleged call and that Susinno alleged a concrete (intangible) injury—vacating the dismissal and remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Statutory scope: Does §227(b)(1)(A)(iii) prohibit a single prerecorded call to a cell phone not charged to the recipient?	The TCPA forbids prerecorded calls to any cellular telephone service, regardless of whether the called party is charged.	The statutory wording limits coverage to cell services for which the called party is charged; Congress focused on cost of calls.	The court rejected WOW’s narrowing: the provision’s structure and §227(b)(2)(C) (which contemplates FCC exemption for calls not charged to the recipient) show Congress intended to cover uncharged cell calls.
Article III standing: Does receipt of a single unsolicited prerecorded voicemail constitute a concrete injury?	Susinno argued the call invaded privacy/nuisance—the very harms Congress sought to prevent—so it is a concrete intangible injury under Spokeo.	WOW (and amici) contended the alleged harm is too trivial/technical to establish concrete injury; Spokeo requires more than statutory violation.	The court held the alleged invasion of privacy/nuisance is the injury Congress targeted and is closely related to traditional intrusion-upon-seclusion harms; under Spokeo and Horizon, this suffices as a concrete injury.

McCann v. Newman Irrevocable Tr., 458 F.3d 281 (3d Cir.) (standard of review for jurisdictional dismissal)
United States v. Zavrel, 384 F.3d 130 (3d Cir.) (de novo review of statutory interpretation)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausible claims)
Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.) (interpretive discussion of §227(b)(1) language)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III requires a concrete injury; intangible harms can be concrete)
In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir.) (applying Spokeo; statutory violations that target harms Congress sought to prevent can satisfy concreteness)
Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir.) (unwanted texts/calls can constitute concrete TCPA injuries)
Hertz Corp. v. Friend, 559 U.S. 77 (2010) (favoring clear rules for jurisdictional questions)