The Northern District of California denied Facebook’s motion to dismiss a putative class action accusing the company of violating the TCPA. The plaintiff, Florida resident Colin R. Brickman, accuses Facebook of sending thousands of “happy birthday” texts without consent.
The lawsuit, filed on February 2, 2016, alleges that Facebook violates the TCPA by sending unauthorized text messages. Even though Brickman supplied Facebook with his cell phone number, he indicated in his notification settings, prior to receiving the text message, that he did not want to receive any text messages.
For a TCPA claim to be valid, it requires that the plaintiff allege (1) Defendant called a cellular telephone number; (2) using an automated telephone dialing system (ATD); and (3) without the recipient’s prior expressed consent. It is important to note that under TCPA a text message is considered a “call”.
Brickman’s suit alleges that Facebook employs computer software to send “Birthday Announcement Texts” without human intervention to users.
Facebook argued that the text message was triggered by human intervention, in that Brickman signed up for Facebook and linked his cell number to his profile. The Defendant filed a motion to dismiss the case, arguing that the TCPA is unconstitutional and sending birthday reminders should be covered under the first amendment.
On February 7, 2017, United States District Judge Thelton Henderson issued an order denying the motion to dismiss, arguing that the right to privacy outweighs the right to free speech when it comes to protecting telephone consumers.
The opinion by the U.S. District Court for the Northern District of California is “remarkable because the court allowed a class action suit against Facebook to survive the pleadings stage—meaning the potential for billions of dollars in statutory damages to be awarded against Facebook—merely because it sent innocuous birthday updates to a Facebook subscriber,” said Eric Troutman, a Telephone Consumer Protection Act defense attorney in a January 30 e-mailed statement to Bloomberg BNA.
The good news for Facebook was the court agreed that the TCPA is “content based”; meaning that certain messages, such as emergency messages, are exempt based on their content. The immediate effect of the ruling is that Facebook will have to defend Brickman’s suit on technical grounds.
While the case is bad news in the short term for Facebook, the rejection of the constitutional challenge could have long term consequences for the entire industry.
To avoid headaches like this, direct marketers should always be sure to secure proper consent before starting any campaign that involves contacting consumers via texts or phone calls.
