Facebook Faces Class Action Over Unwanted Text Messages

A man from Florida is suing Facebook, alleging the company violated a federal anti-telemarketing law by sending text message spam.

Plaintiff Colin Brickman says he has filed a TCPA class action lawsuit to stop Facebook from sending text messages to Facebook users who did not consent to receive such messages. He alleges these text messages contained reminders of the recipient’s Facebook friends’ birthdays, in the following form: “Today is [person’s name]’s birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!’”

Colin says that he specifically indicated in his Facebook account settings that he did not consent to receive any texts from Facebook. He points out three different fields in Facebook’s user account settings in which the user may deny consent to receive text messages. He alleges that Facebook continues to send out birthday announcement text message spam despite being denied consent at each of these three points.

Colin identifies one such message that he received in December 2015. He alleges that Facebook has sent and continues to send thousands of similar messages without its users’ consent. Based on that allegation, he seeks to be the lead plaintiff representing a class of Facebook users who received unconsented birthday announcement texts from Facebook via an automatic telephone dialing system.

Applying the TCPA to Facebook

According to Colin’s class action lawsuit, communications like the ones he attributes to Facebook are exactly the type of communications Congress intended to prevent when it enacted the Telephone Consumer Protection Act, or TCPA. The TCPA incorporates several provisions that restrict the initiation of unsolicited contacts via telephone using a prerecorded message, or what’s known in the act as an automated telephone dialing system.

Specific to cell phones, the TCPA includes a provision that forbids the use of an automated telephone dialing system to reach a number assigned to a mobile phone, except where the call is for emergency purposes or where the caller has the express consent of the person being called.

Colin says that FCC restrictions are even tighter for contacts made for the purpose of telemarketing. Under the FCC’s definition, telemarketing consists of “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person,” says Colin. Such contacts require the called party’s consent to be in writing under FCC regulations.

Colin alleges Facebook’s text messages constitute telemarketing and should therefore be held to the higher standard. He says that Facebook has been sending these messages to spur even more engagement of its website by its users, which in turn ups Facebook’s advertising revenue.

If Colin can prove his allegations, his TCPA class action lawsuit could be very expensive for Facebook. Colin is seeking the minimum statutory damage amount of $500 for every call made in violation of the TCPA. For each violation that he can prove was made willfully, he seeks the statutory maximum of $1,500.

Colin’s TCPA class action lawsuit is filed under 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’ birthdays will 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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