Proposed Class Action Against Twitter Over Text Messages Survives Motion to Dismiss

Dec. 2 — A suit alleging Twitter Inc. unlawfully texted class members that the company allegedly knew or should have known had withdrawn their consent to receive messages may proceed, the U.S. District Court for the Northern District of California ruled Nov. 26.

The proposed class alleged that Twitter violated the Telephone Consumer Protection Act (TCPA), at 47 U.S.C. § 227(b)(1)(A), by using an automatic telephone dialing system to text the class members without their prior express consent. In Satterfield v. Simon & Schuster Inc., 569 F.3d 946 (9th Cir. 2009), the U.S. Court of Appeals for the Ninth Circuit held that a text message is a “call” for purposes of the TCPA, Judge Vince Chhabria wrote.

The putative class was composed of those with “recycled” telephone numbers in which the prior holder of the number had consented to messages from Twitter. The court said some class members alleged they withdrew their consent, “only to be ignored by Twitter,” while others said Twitter knew or should have known they hadn't given their consent to receive texts.

The court rejected Twitter's argument that the case should be dismissed because its equipment doesn't qualify as an automatic telephone dialing system as defined by the TCPA.

The statute, at Section 227(a)(1), defines such telephone systems as equipment that stores or produces telephone numbers using a random or sequential number generator and dials those numbers. Twitter said the lawsuit should be dismissed because its system didn't generate numbers using either a random or sequential number generator.

FCC Interpretation

The court, however, said the plaintiffs' case could proceed because the Federal Communications Commission construed Section 227(a)(1) to include any equipment that generates numbers and dials them without human intervention. Citing the FCC regulation, the court said that definition included hardware that “when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.”

Twitter may challenge at the summary judgment stage whether the FCC exceeded its authority when construing the TCPA provision, the court ruled. It said at least two federal district courts had held the FCC unlawfully expanded the statute's definition of an automatic telephone dialing system.

The court, citing Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012), also rejected Twitter's argument that the person who previously held the mobile phone number should be the person from whom Twitter needed consent. In Soppet, the Seventh Circuit held that the current holder of the phone number needed to provide consent.

Keller Grover LLP, Jacobs Kolton Chtd. and the Law Offices of David Schachman represented the plaintiffs. Wilson Sonsini Goodrich & Rosati PC represented Twitter.