FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTEN HALL, 

Plaintiff-Appellant, 

 v. 

SMOSH DOT COM, INC., DBA 

Smosh; MYTHICAL 

ENTERTAINMENT, LLC, 

Defendants-Appellees.

No. 22-16216 

D.C. No. 

2:21-cv-01997-

JAM-AC 

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted May 10, 2023

San Francisco, California

Filed June 30, 2023

Before: Michelle T. Friedland and Mark J. Bennett, Circuit 

Judges, and Richard D. Bennett,* Senior District Judge.

Opinion by Judge R. Bennett

* The Honorable Richard D. Bennett, United States Senior District Judge 

for the District of Maryland, sitting by designation.
2 HALL V. SMOSH DOT COM, INC.

SUMMARY**

Telephone Consumer Protection Act / Standing

The panel reversed the district court’s dismissal, for lack 

of Article III standing, of an action under the Telephone 

Consumer Protection Act and remanded for further 

proceedings.

Plaintiff Kristen Hall alleged that defendants sent text 

messages to a cell phone number that she had placed on the 

National Do-Not-Call Registry and provided to her thirteenyear-old son. The district court concluded that Hall lacked 

Article III standing because she failed to allege that she was 

the “actual user” of the phone or the “actual recipient” of the 

text messages.

Reversing, the panel held that the owner and subscriber 

of a phone with a number listed on the Do-Not-Call Registry 

has suffered an injury in fact sufficient to confer Article III 

standing when unsolicited telemarketing calls or texts are 

sent to the number in alleged violation of the Telephone 

Consumer Protection Act. The panel held that the owner and 

subscriber of the phone suffers a concrete, de facto injury 

when their right to be free from such communications is 

violated, even if the communications are intended for or 

solicited by another individual, and even if someone else is 

using the phone at the time the messages are transmitted.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HALL V. SMOSH DOT COM, INC. 3

COUNSEL

Jacob U. Ginsburg (argued), Kimmel & Silverman P.C., 

Ambler, Pennsylvania; Christopher E. Roberts, Butsch 

Roberts & Associates LLC, Clayton, Missouri; for PlaintiffAppellant. 

Jordan Susman (argued) and Margo Arnold, Nolan Heimann 

LLP, Encino, California, for Defendants-Appellees.

OPINION

R. BENNETT, Senior District Judge:

Plaintiff-Appellant Kristen Hall alleges that DefendantsAppellees Smosh Dot Com and Mythical Entertainment, 

LLC (collectively, “Defendants”), sent five text messages to 

a cell phone number that she had placed on the National DoNot-Call Registry and provided to her thirteen-year-old son.1

Hall filed a putative class action lawsuit alleging violations 

of § 227(c) of the Telephone Consumer Protection Act of 

1991 (“TCPA”), 47 U.S.C. § 227 et seq., and other claims

that are not at issue in this appeal. The district court 

dismissed the First Amended Complaint (“FAC”) for lack of 

1 Defendants claim Hall’s son solicited the text messages at issue here, 

by opting-in to receive automated promotional messages through a 

webform. As discussed below, prior express consent is relevant to the 

merits of a TCPA claim, not to Article III standing. Accordingly, we hold 

that even if Hall’s son solicited messages from the Defendants, Hall has 

standing to litigate her TCPA claim as the subscriber and owner of the 

phone that received the messages. Whether he in fact solicited the 

messages, and whether his consent would be legally sufficient under the 

TCPA, are inquiries reserved for the merits. 
4 HALL V. SMOSH DOT COM, INC.

Article III standing, reasoning that Hall failed to allege she 

was the “actual user” of the phone or the “actual recipient” 

of the five text messages at issue. We have jurisdiction 

pursuant to 28 U.S.C. § 1291, and we reverse and remand. 

We have held that the receipt of unsolicited phone calls 

or text messages in violation of the TCPA is “a concrete 

injury in fact sufficient to confer Article III standing.” Van 

Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 

(9th Cir. 2017); see also Wakefield v. ViSalus, Inc., 51 F.4th 

1109, 1117–18 (9th Cir. 2022); Chennette v. Porch.com, 

Inc., 50 F.4th 1217, 1222 (9th Cir. 2022). That is because 

“[u]nsolicited telemarketing phone calls or text messages, by 

their nature, invade the privacy and disturb the solitude of 

their recipients.” Van Patten, 847 F.3d at 1043. However, 

Article III requires a plaintiff to assert her own legal rights, 

and to count herself among the injured. Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 563 (1992). 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.

We now hold that the owner and subscriber of a phone

with a number listed on the Do-Not-Call Registry has 

suffered an injury in fact when unsolicited telemarketing 

calls or texts are sent to the number in putative violation of 

the TCPA. In instructing the Federal Communications 

Commission (“FCC”) to adopt a National Do-Not-Call 

Registry, Congress granted residential phone subscribers the 

right to create a private line, free from unsolicited calls and 

intrusive texts. See 47 U.S.C. § 227(c); 47 C.F.R. 

§ 64.1200(c)(2); see also Van Patten, 847 F.3d at 1043 

(“The TCPA establishes the substantive right to be free from 

certain types of phone calls and texts absent consumer 
HALL V. SMOSH DOT COM, INC. 5

consent.”). The owner and subscriber of the phone suffers a 

concrete, de facto injury when their right to be free from such 

communications is violated—even if the communications 

are intended for or solicited by another individual, and even 

if someone else is using the phone at the time the messages 

are transmitted.2 As Hall alleges that she was the owner and 

subscriber of a cell phone number on the Do-Not-Call 

Registry that received unsolicited text messages in violation 

of the TCPA, she has stated an injury in fact sufficient to 

satisfy Article III.

BACKGROUND

Defendants have been digital content creators for more 

than sixteen years.3 Defendants produce “sketch comedy” 

videos and sell merchandise for an adolescent audience.

Since 2016, they have operated a website with an online 

store that markets retail apparel and accessories related to 

their digital content. Hall alleges that Defendants “derive 

substantial profits from collecting, selling and transmitting 

consumer data,” and that they “engage in ‘direct’ 

telemarketing via text message and calls to phone numbers 

entered in the website smosh.com.” 

At the time of all events relevant to this case, Plaintiff 

Kristen Hall was a resident of Willis, Texas, along with her

thirteen-year-old son. Hall alleges that she owned “a cellular 

2 We do not decide whether a subscriber would have Article III standing 

to litigate a TCPA violation if they authorized a third-party user to 

provide consent. There is no allegation here that Hall authorized her son 

to opt-in to receive messages from Defendants.

3 Specifically, Smosh is “an online entertainment and merchandise 

company geared toward adolescents,” and “Mythical is the parent 

company, which owns and operates Smosh.com.” Plaintiff alleges that 

at all relevant times, “the two businesses worked together in concert.” 
6 HALL V. SMOSH DOT COM, INC.

phone, the number for which was 575-XXX-0669,” and 

which was used primarily for residential purposes. She also 

alleges that she allowed her son to use this phone “at times,”4

and that she placed its number on the National Do-Not-Call 

Registry “to obtain solitude from invasive and irritating 

solicitation calls and to protect her minor son from being 

inundated with advertisers and data-miners.” 

According to the FAC, Defendants obtained personal 

information from Hall’s son on or around November 3, 

2019. Thereafter, between December 25, 2019, and June 29, 

2020, Defendants sent at least five text messages to Hall’s 

number soliciting business and offering discounts on Smosh

merchandise. Hall contends that she “found those 

solicitation messages to be irritating, exploitative and 

invasive,” and that they “were precisely the type of 

communications she sought to avoid when she registered her 

number on the Do Not Call [R]egistry.” In pre-suit 

communications between the parties’ attorneys, Defendants 

claimed that Hall’s son had “opted in” to receive these 

communications on November 3, 2019. 

Hall filed the operative FAC on December 28, 2021. 

Among other claims, the FAC alleged that Defendants 

violated § 227(c) of the TCPA and its implementing 

regulations by sending text messages to numbers listed on 

the National Do-Not-Call Registry. Defendants moved to 

dismiss the FAC for failure to state a claim, and for lack of 

standing. As relevant to the standing issue, Defendants 

4 The extent of Hall’s son’s use of this phone is contested by the parties. 

However, because we hold that Hall has standing as the subscriber of the 

cell phone that received unsolicited messages in alleged violation of the 

TCPA, it is unnecessary to address Defendants’ contentions regarding 

which individual was the primary user of the phone.
HALL V. SMOSH DOT COM, INC. 7

argued that Hall lacks Article III standing because she “has 

not pleaded that she was the user of the Number or that she 

actually received any messages from Defendants.” The 

district court granted Defendants’ motion on July 12, 2022, 

rejecting the proposition that Hall has Article III standing 

“merely as the subscriber/owner of the phone.” Because the 

district court concluded that Hall lacked standing, it did not 

reach any merits issues, including whether Hall properly 

stated a claim under Fed. R. Civ. P. 12(b)(6).

This appeal followed.

STANDARD OF REVIEW

“‘We review de novo dismissal for lack of subject matter 

jurisdiction.’” Mecinas v. Hobbs, 30 F.4th 890, 895 (9th Cir. 

2022) (quoting Zuress v. Donley, 606 F.3d 1249, 1252 (9th 

Cir. 2010)). Standing must be established “‘with the manner 

and degree of evidence required at the successive stages of 

the litigation.’” Id. at 896–97 (quoting Lujan, 504 U.S. at

561). “When ‘deciding standing at the pleading stage, and 

for purposes of ruling on a motion to dismiss for want of 

standing, both the trial and reviewing courts must accept as 

true all material allegations of the complaint, and must 

construe the complaint in favor of the complaining party.’” 

Id. at 895–96 (quoting Desert Citizens Against Pollution v. 

Bisson, 231 F.3d 1172, 1178 (9th Cir. 2000)).

ANALYSIS

The sole issue before us is whether Hall has Article III 

standing to bring claims under the TCPA. Article III of the 

United States Constitution limits the jurisdiction of the 

federal courts to “Cases” and “Controversies.” U.S. Const. 

art. III, § 2. The concept of standing gives meaning to these 

constraints by identifying “disputes which are appropriately 
8 HALL V. SMOSH DOT COM, INC.

resolved through the judicial process,” Lujan, 504 U.S. at

560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 

(1990)), and limiting “the category of litigants empowered 

to maintain a lawsuit in federal court to seek redress for a 

legal wrong,” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 

(2016). The “‘irreducible constitutional minimum’” of 

Article III standing requires a plaintiff to “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.” Id. (quoting 

Lujan, 504 U.S. at 560–61). Here, the only element of 

standing in dispute is whether Hall has suffered an injury in 

fact.

We have previously held that the receipt of “[u]nsolicited 

telemarketing phone calls or text messages” in violation of 

the TCPA is “a concrete injury in fact sufficient to confer 

Article III standing.” Van Patten, 847 F.3d at 1043; see also

Chennette, 50 F.4th at 1222; Wakefield, 51 F.4th at 1117–

18. In Van Patten, we explained that “[t]he TCPA 

establishes the substantive right to be free from certain types 

of phone calls and texts absent consumer consent.” 847 F.3d

at 1043. Through its enactment, “Congress sought to protect 

consumers from the unwanted intrusion and nuisance of 

unsolicited telemarketing,” and “identified unsolicited 

contact as a concrete harm.” Id. That harm is sufficient to 

confer standing under Article III, as “[u]nsolicited 

telemarketing phone calls or text messages, by their nature, 

invade the privacy and disturb the solitude of their 

recipients.” Id. Accordingly, “a violation of the TCPA is a 

concrete, de facto injury,” and “[a] plaintiff alleging a 

violation under the TCPA ‘need not allege any additional

harm beyond the one Congress has identified.’” Id. (quoting 

Spokeo, 578 U.S. at 342); accord Wakefield, 51 F.4th at 
HALL V. SMOSH DOT COM, INC. 9

1117–18 (“[T]he receipt of telephone calls in alleged 

violation of the TCPA is a concrete injury for Article III 

purposes.”).5

Hall alleges that she was the owner and subscriber of the 

cell phone at issue, that she listed its number on the Do-NotCall Registry “to obtain solitude from invasive and irritating 

solicitation calls,” and that Defendants sent five text 

messages to that number in a seven-month period. That is a 

cognizable injury under Van Patten. However, “the ‘injury 

in fact’ test requires more than an injury to a cognizable 

interest. It requires that the party seeking review be himself 

among the injured.” Lujan, 504 U.S. at 563 (quoting Sierra 

Club v. Morton, 405 U.S. 727, 734–35 (1972)); accord 

Spokeo, 578 U.S. at 338 (noting that Article III standing 

limits “the category of litigants” who may bring suit); Fleck 

& Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1104 (9th 

Cir. 2006) (“[A] litigant must normally assert his own legal 

interests rather than those of third parties.” (internal 

quotation marks and citation omitted)). Because Hall 

5 In so holding, we distinguished a TCPA violation from the type of 

procedural deficiency identified in Spokeo: 

Unlike in Spokeo, where a violation of a procedural 

requirement minimizing reporting inaccuracy may not 

cause actual harm or present any material risk of harm, 

the telemarketing text messages at issue here, absent 

consent, present the precise harm and infringe the 

same privacy interests Congress sought to protect in 

enacting the TCPA.

Van Patten, 847 F.3d at 1043. Expressed differently, whereas a reporting 

violation presents only a speculative risk of harm, the receipt of an 

unwanted telemarketing text message or phone call in violation of the 

TCPA is inherently an invasion of privacy and a concrete injury. 
10 HALL V. SMOSH DOT COM, INC.

provided the phone to her son, Defendants argue that she has 

not suffered an injury, as she did not allege that she was “the 

actual user of the phone number to which Defendants sent 

the text messages [or] the actual recipient of those 

messages.” The district court agreed. We now reverse and 

hold that the owner and subscriber of a phone number listed 

on the Do-Not-Call Registry suffers an injury in fact when 

their phone receives text messages in alleged violation of the 

TCPA.6

The National Do-Not-Call Registry is directed at 

preserving the privacy of the residential subscriber who 

listed their number with the expectation that they would not 

be contacted by telemarketers. Section 227(c) of the TCPA, 

which authorizes the FCC to create the Registry and forms 

the basis of Hall’s claim, addresses “the need to protect 

residential telephone subscribers’ privacy rights to avoid 

receiving telephone solicitations to which they object.” 

47 U.S.C. § 227(c)(1). This provision directs the FCC to 

promulgate regulations authorizing “residential subscribers” 

to place their phone numbers on the Registry, and provides 

a private right of action to redress unsolicited calls to those 

6 The parties expend significant energy on whether Hall qualifies as a 

“called party” for TCPA purposes. However, the phrase “called party” 

appears in § 227(b), governing automated robocalls, not § 227(c), 

addressing the Do-Not-Call Registry. Even if that language is relevant to 

§ 227(c), any argument about who constitutes a “called party” is relevant 

only to the scope of the cause of action created by the TCPA, not to the 

question of Article III standing. See Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 128 n.4 (2014) (explaining that this 

merits concept has sometimes been referred to as “statutory standing”). 

And again, we express no opinion as to whether a subscriber would have 

standing if they authorized a third-party to consent to receive messages.
HALL V. SMOSH DOT COM, INC. 11

numbers. 47 U.S.C. § 227(c)(3)(F). Those implementing 

regulations provide that:

(c) No person or entity shall initiate any telephone 

solicitation to:

. . .

(2) A 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. 

Such do-not-call registrations must be 

honored indefinitely, or until the 

registration is cancelled by the consumer 

or the telephone number is removed by 

the database administrator.

47 C.F.R. § 64.1200(c)(2). The telemarketer may raise an 

affirmative defense to liability if: (i) the call was placed in 

error and certain procedural requirements were met; (ii) the 

telemarketer “has obtained the subscriber’s prior express 

invitation or permission”; or (iii) the telemarketer “has a 

personal relationship with the recipient.” Id.

§ 64.1200(c)(2)(i)–(iii).7

7

 These are not the only ways in which a telemarketer may be able to 

avoid TCPA liability. For example, under 47 C.F.R. § 64.1200(c)(2)(ii), 

it may be sufficient for a telemarketer to show that it obtained the consent 

of a phone’s “consumer,” even if the phone’s consumer is someone other 

than the phone’s subscriber. Or, in an action brought under 16 C.F.R. 

§ 310.4(b)(iii)(B)(1), there may be no liability when the owner of a 

telephone number authorizes a third-party to solicit messages. Since we 
12 HALL V. SMOSH DOT COM, INC.

As noted above, Defendants argue that Hall has not been 

injured because she did not allege that “she was the actual 

user of the phone number to which Defendants sent the 

messages [or] the actual recipient of those messages.” This 

contention boils down to the problematic proposition that the 

challenged text messages “were transmitted to ‘[Hall’s] 

cellular telephone’ and not [Hall] personally.” But the 

relevant question for Article III standing purposes is simply 

whether Hall has suffered a cognizable injury. Because “a 

violation of the TCPA is a concrete, de facto injury,” Van 

Patten, 847 F.3d at 1043, and the Do-Not-Call provisions of 

the TCPA proscribe unsolicited calls and text messages to 

phone numbers on the Do-Not-Call Registry, Hall’s 

allegation that she received unsolicited text messages at a 

phone number that she placed on the Do-Not-Call Registry 

is sufficient to confer standing.8 Moreover, although such 

allegations are not necessary to show injury in fact, Hall has 

alleged that she found Defendants’ texts to be “irritating, 

remand all merits questions to the district court, we need not decide the 

scope of these sections, who qualifies as a consumer or relevant thirdparty, how consent is demonstrated, whether a minor can give such 

consent, and, if so, what law a court should look to in evaluating consent. 

8 The Do-Not-Call Registry lists numbers, not names. See Federal Trade 

Comm’n, Q&A for Telemarketers & Sellers About DNC Provisions in 

TSR, https://www.ftc.gov/business-guidance/resources/qatelemarketers-sellers-about-dnc-provisions-tsr-0#accessingtheregistry

(“The only consumer information that companies will receive from the 

national registry is registrants’ telephone numbers. The numbers will be 

sorted and available by area code.”). A telemarketer ordinarily does not 

know if consent to receive telephone messages comes from the 

subscriber of a particular number or some other user. We recognize that 

allowing lawsuits to proceed when the ultimate phone user consents may 

cause telemarketers difficulties, even if such consent means that any such 

suit will ultimately fail on the merits. But it is up to Congress or 

implementing agencies to address any such supposed difficulties.
HALL V. SMOSH DOT COM, INC. 13

exploitative and invasive.” These allegations suggest that 

Hall has suffered the precise sort of nuisance and privacy 

deprivation the TCPA was enacted to address.

Nothing in our precedent or 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. Requiring a heighted level of 

phone use as a prerequisite for standing is contrary to our

prior recognition that “[r]eceiving even one unsolicited, 

automated text message from [a telemarketer] is the precise 

harm identified by Congress,” and sufficient to state an 

injury in fact under Article III. See Chennette, 50 F.4th at 

1222. Moreover, standing is not exclusive. The fact that the 

primary or customary user of a phone may suffer a concrete 

injury from an unwanted call or text message does not 

preclude the phone’s owner and subscriber from suffering 

the same. Cf. Krakauer v. Dish Network, LLC, 925 F.3d 643, 

647 (4th Cir. 2019) (“If a wife, as the subscriber, lists a home 

telephone number on the Do-Not-Call registry, but her 

husband happens to be the one who receives the improper 

calls . . . [b]oth the wife and the husband can suffer the harm 

that Congress sought to deter.”).

Finally, as noted above, Defendants claim that Hall’s son 

solicited the text messages by signing up through an online 

form. As relevant here, a telemarketer may contact a number 

listed on the National Do-Not-Call Registry if the 

telemarketer “has obtained the subscriber’s prior express 

invitation or permission,” as “evidenced by a signed, written 

agreement between the consumer and seller which states that 

the consumer agrees to be contacted by this seller and 

includes the telephone number to which the calls may be 

placed.” 47 C.F.R. § 64.1200(c)(2)(ii). Determining whether 
14 HALL V. SMOSH DOT COM, INC.

such consent was provided “requires an analysis of the

merits of [Hall’s] TCPA claim,” and has no bearing on the 

question of Article III standing. Wakefield, 51 F.4th at 1118 

n.7. Accordingly, we hold that even if Hall’s son solicited 

messages from the Defendants, Hall has standing to bring 

her TCPA claim by virtue of her status as the subscriber and 

owner of the phone, and her allegation that the phone 

received unsolicited text messages in violation of the 

TCPA.

9 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. 

For the reasons discussed above, we hold that that the 

owner and subscriber of a cell phone listed on the Do-NotCall Registry has Article III standing to bring claims under 

the TCPA for unsolicited calls or text messages directed to 

its number. Hall alleges that Defendants texted a phone 

number that she owned and subscribed to, contrary to the 

precise privacy expectations she vindicated by placing her 

number on the Do-Not-Call Registry. Nothing more is 

required. Cf. Van Patten, 847 F.3d at 1043 (“A plaintiff 

alleging a violation under the TCPA ‘need not allege any 

additional harm beyond the one Congress has identified.’” 

(quoting Spokeo, 578 U.S. at 342)). The issues of whether 

Hall’s son consented to receive messages, and whether such 

consent would be sufficient to satisfy the TCPA, are reserved 

for the district court on remand. Accordingly, we reverse the 

9 We do not decide whether a subscriber would have Article III standing 

to litigate a TCPA violation if they authorized a third-party user to 

provide consent. There is no allegation here that Hall authorized her son 

to opt-in to receive messages from Defendants.
HALL V. SMOSH DOT COM, INC. 15

dismissal of the FAC for lack of Article III standing, and 

remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.