Twitter TCPA Class Action Affirms Consumer’s Protections from Unsolicited Text Messages

A California federal judge has nixedTwitter’s attempt to escape a $5 million proposed class action alleging the social media giant violated the Telephone Consumer Protection Act by sending unsolicited text messages, saying that the equipment Twitter uses to make calls is considered an automatic dialing system.

U.S. District Judge Vince Chhabria said on Wednesday that the FCC has interpreted the TCPA to cover equipment with the ability to generate and dial numbers automatically, regardless of whether the called numbers are randomly generated or come from a database of stored numbers. The judge sided with plaintiff Beverly Nunes’s argument that barred automatic dialing systems comprise a wide spectrum of evolving technology, including technology that can dial from lists or databases without requiring human intervention.

“Although this language is not crystal clear, it appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention,” the judge said. “This appears to be the way predictive dialers worked — the technology at issue in the FCC orders — and it is the way Nunes alleges that Twitter’s equipment works in this case.”

The judge’s ruling keeps Nunes’ claims that Twitter violated the TCPA by sending her texts via accounts linked to the previous owner of her phone number alive.

Judge Chhabria rejected Twitter’s argument that Nunes wrongly alleged that its equipment is able to generate numbers randomly and sequentially, rather than just using numbers from a database.

“Twitter argues that this allegation is wrong and that Twitter’s equipment would need to be dramatically reconfigured to meet the narrower definition of an automatic telephone dialing system, but that is not apparent from the allegations in [the complaint], and it is therefore an evidentiary matter that cannot be resolved at the pleading stage,” the judge said.

The judge also rejected Twitter’s argument that it had Nunes’s consent to text her, since the person who used to have her phone number gave Twitter permission to text.

Twitter’s argument failed for the same reasons given in the Seventh Circuit’s decision in Soppet v. Enhanced Recovery Co. LLC, which held that the TCPA requires consent from current cellphone owners before they can be robo-called, even if the previous owners gave permission, the judge said.

Nunes filed suit in June, alleging that after obtaining a new phone number, she began receiving text messages from Twitter via accounts associated with the prior owner of the telephone number.

Nunes replied in an attempt to stop the communications, but since she did not use a valid “STOP” command Twitter’s system would recognize, her responses were instead posted online as tweets from the Twitter account associated with the cellphone number, according to a motion to dismiss filed by Twitter in September.

Nunes accuses the San Francisco-based company of collecting and storing user data, including user cellphone numbers, for the purpose of sending automated mass text messages on its and the users’ behalf.