This Monday, Facebook filed a motion to dismiss a Telephone Consumer Protection Act (TCPA) class action lawsuit filed in connection with Facebook’s delivery of birthday notification text messages to certain users of its social media platform.

Facebook’s Birthday Notification Text Messages

According to public court records, Florida resident Colin R. Brickman voluntarily provided his mobile phone number to Facebook. Last December, Facebook allegedly delivered the following text message to Brickman’s mobile phone: “Today is Jim Stewart’s birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!’”

Brickman maintains that he never adjusted his Facebook account settings to consent to the receipt of text messages or otherwise indicated that he wanted to receive text messages from Facebook.

TCPA Class Action Against Facebook

This February, Brickman filed a TCPA class action complaint against Facebook in a San Francisco federal court (Case No.3:16-cv-00751-MMC) on behalf of all individuals who have received a birthday announcement text message from Facebook.

Brickman claims that the birthday text messages amount to telemarketing, arguing that “any invitation to post a message on Facebook is meant to promote Facebook’s service and entice users to take an action that results in financial benefit to Facebook.”Based on this conclusion, Brickman alleges that Facebook violated the TCPA by delivering the text messages in question without obtaining each class member’s prior express written consent.

Facebook Moves to Dismiss TCPA Class Action

This Monday, Facebook filed a motion to dismiss Brickman’s TCPA class action complaint on three separate grounds:

First, Facebook alleges that Brickman’s allegations do not support an inference that the birthday text messages in question were sent with an automatic telephone dialing system (ATDS) – a necessary element of a valid TCPA claim. Facebook maintains that the subject text messages demonstrate direct targeting and human intervention because each message lists a particular individual’s name and is delivered on a particular date (i.e., the person’s birthday).

Second, Facebook claims that the birthday text messages in question did not amount to telemarketing. Therefore, Facebook contends that it received valid “prior express consent” under the TCPA’s lower standard for non-telemarketing text messages when the class members provided their wireless numbers to Facebook.

Third, Facebook argues that the TCPA is a content-based restriction of speech that violates the First Amendment of the U.S. Constitution and “flunks the strict scrutiny test.”In its motion, Facebook highlights certain TCPA provisions that it claims draw distinctions based on the message a speaker is conveying, such as exemptions for certain calls and text messages made or delivered for debt collection or emergency purposes.According to Facebook, “no court has ever addressed whether the TCPA’s exceptions render it a content-based restriction of speech that can survive strict scrutiny.”

Protect Yourself Against TCPA Class Action Claims

As this case demonstrates, it is becoming increasingly important for businesses to understand the scope of the TCPA and to act affirmatively to protect themselves against class action claims and regulatory investigation.

If a dispute concerning TCPA consent arises, the calling/texting party bears the burden of demonstrating that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive robocalls or text messages, as applicable.It is a best practice for businesses to obtain the prior express written consent of each such consumer, which provides a strong, tangible defense in the event of a regulatory investigation or legal action.

Evidence of Internet-provided prior express written consent may include, but is not limited to, screenshots of webpages that contain consumer consent language and fields as seen by the consumer, as well as complete data records submitted by the consumer (with time and date stamps).We recommend use of one of the technology solutions on the market to help simplify the process of documenting consent.Further, consent language should be carefully vetted by an experienced telemarketing lawyer to minimize the risk of TCPA legal action or regulatory enforcement down the road.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

About David O. Klein

David O. Klein, Managing Partner of Klein Moynihan Turco LLP, is one of the most recognized attorneys in the telemarketing and Internet marketing fields. Skilled at counseling clients on a broad range of telemarketing-related matters, David Klein has substantial experience in regulatory compliance matters and the drafting of associated TCPA consent language and related telemarketing agreements. He has an in-depth understanding of Telemarketing, Internet and new media law and is established as a leader in the industry.