Facebook Sued for Sending Birthday Texts

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By Alexis Kramer

Feb. 16 — Facebook Inc. has allegedly sent thousands of unsolicited text messages announcing users' birthdays in violation of the Telephone Consumer Protection Act, according to a complaint filed Feb. 12 in the U.S. District Court for the Northern District of California.

Facebook sent these birthday announcements despite an express choice by users not to receive any texts from the social network, a Facebook user alleged in the complaint.

Facebook has argued in a separate lawsuit that the TCPA is unconstitutional as applied to its notification messages .

The plaintiff in the instant case seeks statutory damages and an order requiring Facebook to stop sending the messages without user consent.

“This lawsuit is for the thousands of persons who did NOT give Facebook prior express consent—written or otherwise—but to whom Defendant nevertheless sent the Birthday Announcement Text,” the plaintiff said.

No Prior Consent

The TCPA, 47 U.S.C. § 227, prohibits using an autodialer to make phone calls, including text messages, to a mobile device without recipients' express prior consent.

Colin Brickman brought class claims against Facebook for sending birthday announcement texts to users without their consent. The texts provide: “Today is [Facebook friend’s] birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!'”

According to Brickman, Facebook users can indicate lack of consent to receive texts in three ways. They may choose to: not activate their phone number for text messaging, select “off” for text notifications or expressly opt out of receiving certain types of text messages.

Facebook sent and continues to send birthday announcement texts to Brickman and other users who expressly indicated lack of consent through one of the three methods, Brickman said.

Brickman said he didn't activate his phone for text messaging, so Facebook should have known that he didn't authorize the company to send him messages of any kind.

Tycko & Zavareei LLP represents Colin Brickman.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Joseph Wright at jwright@bna.com