Facebook Wants ‘Happy Birthday’ Text Spam Class Action Tossed

Facebook has asked a California federal judge to dismiss the text spam lawsuit filed against the social media giant for its alleged Telephone Consumer Protection Act (TCPA) violations, stating that its ‘happy birthday’ messages are permissible under the TCPA.

In the motion to dismiss, Facebook argued that the TCPA is meant to protect against telemarketing and robocalls and not against personalized messages alerting its users about their friends’ birthdays.

“This sort of message – that identifies a specific individual with a specific connection to plaintiff and relates to a specific event on a specific date – is a far cry from the type of impersonal, en masse communications that the [TCPA] prohibits.”

Additionally, Facebook argued that the TCPA requires the use of an “automated telephone dialing system,” and its birthday messages are sent only after a user inputs their own telephone number into Facebook.

This is also why Facebook argues that even if these alleged text spam messages fell under TCPA regulations, they have received consent from their users.

“These allegations do not describe an impersonal message sent en masse, but a targeted message that was sent only with human intervention to a person with whom Facebook had an existing relationship,” the motion stated.

Facebook also questions the lead plaintiff’s standing, but is awaiting a decision from the U.S. Supreme Court in Spokeo Inc. v. Robins.

Lead plaintiff Colin R. Brickman launched the putative text spam TCPA class action against the popular social media website, asserting that the company violated the TCPA by sending automated unwanted text message spam to its users’ phones to alert them of their Facebook friends’ birthdays.

According to the Facebook TCPA class action lawsuit, users who have clearly indicated in their Facebook account settings that they do not consent to receive text spam messages are still getting unwanted text message notifications from the social media giant.

“Despite plaintiff’s express lack of consent, Facebook sent birthday announcement texts to plaintiff’s phone in violation of [the TCPA]…which protects the privacy rights of individuals to be free from receiving unwanted text message spam on their cellular phones.”

Brickman believes that the unwanted text message alerts are being sent to drive interaction on the social media website by its users and in turn generate more advertising revenue for Facebook. He further states that this is what makes these text spam messages ‘telemarketing messages’ and therefore a violation of the TCPA.

Text Spam and the TCPA

The TCPA allows certain individuals to file lawsuits (including class actions) to collect damages after receiving unwanted text message spam delivered by automatic telephone dialing systems.

These plaintiffs may show actual damages or, like Mr. Brickman, seek statutory damages ranging from $500 to $1,500 per violation.

Although certain protections were once afforded to companies delivering automated text messages to consumers with whom they had an established business relationship, this exception was eliminated by new rules enacted by the Federal Communications Commission (“FCC”) in October 2013.

Now, prior express written consent is required for all automated commercial text messaging.

By filing the TCPA class action lawsuit, Brickman is hoping to stop Facebook’s practice of sending unwanted text message spam. He is seeking $500 per violation in statutory damages as well as costs and attorneys’ fees.

The Facebook Text Spam Class Action Lawsuit is Colin R. Brickman v. Facebook Inc., Case No. 3:16-cv-00751 in the U.S. District Court for the Northern District of California.
UPDATE: On Jan. 27, 2017, a class action alleging Facebook violated the Telephone Consumer Protection Act by sending reminders to users about their friends’ birthdayswill be allowed to continue, following an order by a California federal judge.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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