Facebook Escapes Robotext Suit

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By Alexis Kramer

Facebook Inc. has escaped a class claim that it violated a federal robocall law by allegedly sending automated login notification text messages when a Facebook account is accessed from a new device ( Duguid v. Facebook, Inc. , N.D. Cal., No. 15-CV-00985-JST, 2/16/17 ).

Plaintiff Noah Duguid didn’t adequately show that Facebook sent the messages using an autodialer without his consent in violation of the Telephone Consumer Protection Act, the U.S. District Court for the Northern District of California ruled. Duguid’s allegations showed that the messages were targeted to specific phone numbers rather than sent at random, Judge Jon S. Tigar said.

The case is one of several lawsuits against Facebook for allegedly sending unwanted text messages without users’ express prior consent. In January, the same California court declined to dismiss class claims that the social network allegedly sent thousands of happy birthday texts in violation of the TCPA ( Brickman v. Facebook , No. 16-cv-00751-TEH (N.D. Cal. 2017)).

Direct Targeting

Duguid alleged that Facebook sent, through an automatic telephone dialing system (ATDS), text messages alerting him of suspicious login attempts. Facebook’s system meets the TCPA’s definition of an ATDS because it either has the capacity to store and dial random or sequential numbers or can add that capacity with code, Duguid alleged.

The court said the allegations showed that Facebook targeted messages to specific phone numbers following attempts to log into accounts associated with those phone numbers. This direct targeting is “inconsistent with the existence of an ATDS,” the court said.

The court dismissed allegations that Facebook used a computerized protocol to create automated texts and required users to enter a code whenever they log into Facebook from an unrecognized device.

“It is unclear why Duguid believes these facts would strengthen the inference that Facebook sent text messages en masse using an ATDS,” the court said. “To the contrary, allegations of customizable protocols and unique codes only further suggest” that Facebook sent the texts through direct targeting, it said.

The court declined to address Facebook’s argument that the TCPA violated the First Amendment as a content-based restriction on protected speech.

Lemberg Law LLC represented Duguid. Kirkland & Ellis LLP represented Facebook.

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

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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