Twitter Inc. has filed a motion to dismiss a $5 million proposed class action lawsuit that accuses the popular social media site of Telephone Consumer Protection Act (TCPA) violations by sending unsolicited text messages.
The company argues the texts were not sent unsolicited via automated systems and therefore not in violation of the TCPA. Plaintiff Beverly Nunes alleges that shortly after she activated her new cell phone, she began receiving text messages from Twitter.
“These messages were Tweets requested by the former user of plaintiff’s cell phone number,” the TCPA lawsuit states and were sent with the “prior express consent of the called party.”
As an initial matter, Twitter’s texts were not sent using an “automatic telephone dialing system or an artificial or prerecorded voice,” according to the motion. Twitter requested that U.S. District Judge Vince Chhabria dismiss the text spam lawsuit on the grounds that text messages were not sent using an “automated telephone dialing system or an artificial or pre-recorded device” and were sent with the “prior consent of the called party.” Therefore, according to Twitter, sending texts to Nunes’ cell phone did not violate the TCPA because advance consent from the intended recipient was received.
Twitter claims that the messages were intended to go to the user who expressly consented to receiving them at the cell phone number supplied,” the motion states. By sending texts to that number, Twitter claims it did not violate the TCPA because the “called party” whose advance consent must be secured is the intended recipient of the text.
Nunes claims that, as the new holder of the phone number, only her consent matters. But Twitter claims that misreads the statute and creates serious constitutional problems.
“Requiring callers to obtain prior consent from unintended recipients of a call means strict liability for all calls made to friends, family, colleagues or customers at phone numbers they happen no longer to control,” the motion states. “That would turn dialing or texting into a game of Russian roulette, chilling a wide range of constitutionally protected communications and violating both the Due Process Clause and the First Amendment.”
The Purpose of the Telephone Consumer Protection Act (TCPA)
The TCPA was passed into law in 1991 to curtail certain kinds of invasive telemarketing practices. Under the TCPA, people who have received telemarketing calls, unsolicited faxes, prerecorded calls, or auto-dialed calls to cellphones may file lawsuits against the person or company making those calls if they violate the TCPA. The statute provides damages, generally from $500 to $1,500 for each violation, which are paid to the consumer if the consumer prevails.
The TCPA bans companies from sending automated text messages to cellphones without first obtaining consent, according to the TCPA class action lawsuit, which seeks to represent hundreds — if not thousands — of individuals and entities.
The Twitter TCPA Class Action Lawsuit is Beverly Nunes v. Twitter Inc., Case No. 3:14-cv-02843-VC, in the U.S. District Court for the Northern District of California, San Francisco Division.
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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