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telephone consumer protection act

Internet Law: Is Facebook Violating The TCPA Via Text Message?

By John DiGiacomo

There a few cases percolating through the federal courts accusing Facebook of illegal robocalling via their automated text messaging. One example is Brickman v. Facebook, Inc., No. 16 Civ. 00751 (N.D. Cal. Jan. 27, 2017) which argues Facebook is violating the Telephone Consumer Protection Act.

Mr. Brickman claims Facebook sent an automated text message prompting him that it was the birthday of a friend of his. The message came to his cellphone number and sated: “Today is Jim Stewart’s birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!’” While Brickman had given his phone number to Facebook (he was required to give his phone number), Brickman set his personal settings to “no text messages” from Facebook. Brickman sued Facebook alleging violation of the federal Telephone Consumer Protection Act (“TCPA”), which prohibits robocalling via use of automated dialing machines.

What is the Telephone Consumer Protection Act?

The Telephone Consumer Protection Act (TCPA) became law in 1991; now codified at 47 U.S.C. § 227. Essentially, the TCPA bans robocalling and gives the Federal Communications Commission (FCC) regulatory authority to create regulations. The TCPA prohibits companies or individuals from “mak[ing] any call (other than a call made … with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice …” The penalties are the greater of actual monetary loss or $500 per violation with treble damages where a violation is deemed willful or knowing.

TCPA Legal Principles: What is an Automated Call?

The TCPA came onto the scene just as cellphones and the internet enjoyed wider adoption. As such, key terms such as “automated” and “call” needed legal definitions. Generally, courts have taken the “if it walks like a duck…” approach to defining both terms. The case of King v. Time Warner Cable, 113 F. Supp. 3d 718 (S.D.N.Y. 2015) provides a good example. In that case, the plaintiff sued Time Warner, a national cable service provider, for making 163 automated calls to her cellular phone without her consent. Time Warner used an “interactive voice response” calling system. The system automatically dials the number associated with accounts more than 30 days past-due in the billing cycle. If the customer answers the call, the system plays a recorded message. If the call goes to voicemail, the recorded message plays and the system can call up to two additional times per day.

Time Warner argued that its system did not meet the definition of an automated dialing machine under the TCPA since the numbers called were not “randomly generated.” The court, however, rejected that argument by stating “The method is fully automated from start to finish” and noting that there was no human involvement at any stage of the customer selection, list compilation, or dialing processes. As for the random generation argument, the court found that the law does not require telephone numbers to be randomly generated or chosen, only that the system have “the capacity … to store or produce telephone numbers to be called.” And by that definition, Time Warner’s system met the standard of violating the Telephone Consumer Protection Act.

TCPA Legal Principles: Obtaining Consent

The final argument made by Time Warner was that the plaintiff had consented to the calls. Because to obtain service, Time Warner requires that all customers agree to its Terms of Service Agreement. Among the provisions is this one concerning consent:

“We may call any number you provide to us (or that we issue to you) for any purpose, including marketing of our Services…. However, if you ask to have your number placed on our “do not call” list, we will not call you at that number for marketing purposes…. We may use automated dialing systems or artificial or recorded voices to call you.”

This argument swayed the court and this consent provision was sufficient to absolve Time Warner of liability for robo-calling, but only up to the point where the plaintiff revoked her consent and told Time Warner to stop calling her. The evidence showed that the plaintiff revoked her consent at the 30th call; the court held Time Warner liable for the remaining 153 calls. The court noted that consumers have the right to revoke their consent to receive robocalls. Time Warner could have continued to call the plaintiff about the past-due bill, but had to do so manually. The court assessed treble damages against Time Warner.

Are Text Messages Like Calls?

With respect to Mr. Brickman’s case against Facebook, the question then becomes: Are text messages “calls” for purposes of the TCPA? The answer is yes. See Van Patten v. Vertical Fitness Group, LLC, 847 F. 3d 1037 (9th Circuit 2017). In that case, the plaintiff sued for robo-text messages, or “wireless spam” as he called it, from his fitness club. The plaintiff’s case was dismissed because he had consented to the text messages and had not revoked his consent.

However, before dismissing Mr. Van Patten’s claim, the court confirmed that text messages are “calls” for purposes of the TCPA. The court noted that TCPA does not contain a definition of a “call,” but that the FCC passed regulations in 2003 interpreting the TCPA to encompass text messages. Several courts have deemed that interpretation “reasonable,” and the 9th Circuit panel agreed.

How Will Brickman v. Facebook Turn Out?

Based on the foregoing caselaw, it looks like Facebook might be violating the TCPA with its Birthday text messages. But Facebook has marshalled a novel argument: The TCPA violates the First Amendment to the US Constitution. The TCPA has two exceptions where robo-calling without consent is allowed – emergency communications and certain messages from debt collectors. As such, Facebook argues that the TCPA requires a review of speech and/or communication — content — to determine if a violation has occurred. Because a review of the content of the messages is necessary, the TCPA violates the First Amendment. The Brickman court denied Facebook’s argument. The court held that the TCPA withstands strict scrutiny. A similar result was reached in Mejia v. Time Warner Cable, Inc., Nos. 15-CV-6445 (JPO), 15-CV-6518 (JPO) (S.D. New York August 1, 2017). The cases are on appeal.

Internet Attorneys: Contact Revision Legal Today

If you need more information on the Telephone Consumer Protection Act, contact Revision Legal. Internet law is at the core of Revision Legal’s practice. We are attorneys who know the business of internet law and have the skills and dedication to help your business succeed. We can be reached by email or by calling us at 855-473-8474.

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