Facebook Seeks To Dismiss Text Spam Class Action

Social media giant Facebook is seeking to dismiss a proposed Telephone Consumer Protection Act (TCPA) class action lawsuit, alleging the company sent unsolicited text messages to cellphones notifying users that their accounts had been logged into.

The $5 million lawsuit alleges that Facebook knowingly violated the TCPA by sending the unsolicited text messages. According to the text spam lawsuit, Facebook provides an “extra security feature,” in which it sends log-in notifications to alert users when their account is accessed from a new device.

However, these text messages are allegedly sent, in some cases several times a day, to those:

• Who haven’t given Facebook authorization to do so
• Who have asked Facebook to stop this practice,
• Who allegedly do not even have Facebook accounts

In moving to dismiss the TCPA class action lawsuit, Facebook argued that it does not use an automatic telephone dialing system to send text message notifications, and that its text message notifications qualify as emergency calls under the TCPA.

Facebook suggests that it cannot be said to use an automatic telephone dialing system because users must enter their cellular telephone numbers themselves into Facebook’s database, and it is this entry of the users’ cellular telephone numbers that triggers the sending of text message notifications.

In opposition, plaintiff’s counsel has argued that a defendant can only claim human intervention as a defense if a human being dials the cellular telephone number that receives the  text message.

Overview of Facebook TCPA Lawsuit

According to lead plaintiff Noah Duguid, Facebook began sending unsolicited text messages to his cellphone in January 2014, without his having given his cell phone number to Facebook, or his having had any business dealings with the social media company.

After Duguid allegedly sent the defendant a detailed email in April 2014 complaining about the unsolicited text messages and asking that they stop, Facebook replied with an automated email telling him to log on to its website to report the problematic content. This continued until the following October when Duguid allegedly responded to a Facebook text using the word “off.”

After this, the company replied “Facebook texts are now off. Reply on to turn them back on.” Regardless, the company continued to send unsolicited text messages to Duguid, according to the Facebook TCPA lawsuit.

In bringing the text spam lawsuit, Duguid is seeking to represent two classes of consumers who have similar text spam complaints. According to court documents, the first class consists of those who didn’t provide Facebook with their cell phone number but received unsolicited text messages anyway.

The second consists of those who notified Facebook that they no longer wanted to receive text messages, and received a confirmation from Facebook, but still received an unsolicited text message from the company.

The text spam lawsuit charges Facebook with violations of the TCPA, a statute that the Federal Communications Commission has interpreted to apply to text messages.

According to the FCC, “The TCPA and the FCC’s rules ban many text messages sent to a mobile phone using an autodialer. These texts are banned unless (1) you previously gave consent to receive the message or (2) the message is sent for emergency purposes.”

The TCPA allows consumers to recover $500 per call, or up to $1,500 per call if the caller “knowingly” or “willfully” violated the law.

Text message spam is all-too-common. The Pew Research Internet Project found that, as of January 2014, 90% of American adults owned cell phones. According to Pew’s 2012 research, 69% of texters reported receiving unsolicited text messages, while 25% reported receiving text spam weekly.

The Facebook TCPA class action lawsuit is Noah Duguid et al. v. Facebook Inc., Case No. 3:15-cv-00985, in the U.S. District Court, Northern District of California.

Join a Free TCPA Class Action Lawsuit Investigation

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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