Defenses / Standing

Standing: whether this plaintiff can bring this claim at all

Updated 2026-11-036 minute read

Standing asks whether the person suing is someone the law lets sue. In federal court that means a concrete injury traceable to the call. Under the TCPA it also means being the party the statute protects: the subscriber or regular user of the number, not a bystander.

Standing challenges end some claims. More often they narrow them, or move them to a state court where the federal standing rule does not apply. Know which outcome you are buying before you spend money on it.

Concrete injury in federal court

Article III of the Constitution limits federal courts to real disputes. Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), held that a bare statutory violation is not enough; the plaintiff needs a concrete injury. TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), tightened that: the harm has to resemble one the law has traditionally recognized.

For TCPA claims, courts have generally held that unwanted calls and texts are a concrete injury, close enough to the old tort of intrusion upon seclusion. Some courts have questioned whether a single text, unread and undisturbing, clears the bar. The appellate decisions have not been uniform, and the trend has run toward finding injury even for a small number of messages. A standing challenge on injury grounds is therefore a long shot in most courts, and strongest where the plaintiff received one message and cannot describe any effect of it.

The right plaintiff

Section 227(b) protects the "called party", which courts read as the subscriber or the customary user of the number. Section 227(c) protects the residential subscriber whose number is on the registry; wireless numbers are presumed residential for that purpose. The plaintiff has to be one of those people. Someone who picked up a family member's phone, or a business whose line was called, may not be.

This is the part of standing that a demand letter can be tested against. The letter names a person and a number. Was that person the subscriber or regular user on the date of the call? Carrier records and the plaintiff's own evidence answer it. If the answer is no, the listed call may not belong to this plaintiff, though it may belong to someone else.

The manufactured-injury argument

Defendants sometimes argue that a plaintiff who invited calls, kept numbers for the purpose of receiving them, or has filed before, has no real injury. Courts have mostly rejected that as a standing argument, treating a plaintiff's history as a credibility or consent question rather than a jurisdictional one. If the plaintiff actually consented, that is the consent defense, and it is decided on the record of consent, not on the plaintiff's motives.

Winning on standing can move the case, not end it

A federal court that finds no Article III standing dismisses without prejudice. State courts are not bound by Article III, and the TCPA can be enforced in state court. A plaintiff dismissed on standing grounds can refile where the standing rule is different. Before raising it, ask whether you would rather be in the state court down the road. Sometimes the answer is yes. Sometimes a standing win is an expensive change of venue. If the plaintiff agreed to terms, an arbitration clause moves the case more reliably than a standing motion.

The more-than-one-call requirement

A do-not-call claim under § 227(c)(5) needs more than one call to the plaintiff within a twelve-month period. A letter that lists a single call to a registered number does not state that claim. This is a statutory element rather than constitutional standing, but it is raised in the same breath and it is checked the same way: against your call logs for that number. Each of those calls also has its own clock under the statute of limitations.