Facebook’s First Amendment Robocall Law Challenge Fails

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By Jimmy H. Koo

Facebook Inc. must face allegations that it sent thousands of happy birthday texts without consent after a federal district court rejected its argument that telecommunications privacy law claims in the case violated the First Amendment ( Brickman v. Facebook, Inc. , N.D. Cal., No. 16-cv-00751-TEH, 2017 BL 25487, 1/27/17 ).

Eric Troutman, a Telephone Consumer Protection Act defense attorney and partner at Dorsey & Whitney LLP in Costa Mesa, Calif., said the case marks the first time the TCPA has been analyzed under the “strict scrutiny” standard—the highest level of constitutional analysis.

The opinion by the U.S. District Court for the Northern District of California is “remarkable because the court allowed a class action suit against Facebook to survive the pleadings stage—meaning the potential for billions of dollars in statutory damages to be awarded against Facebook—merely because it sent innocuous birthday updates to a Facebook subscriber,” Troutman said in a Jan. 30 e-mailed statement to Bloomberg BNA.

However, a spokesperson for Facebook told Bloomberg BNA on background Jan. 30 that in denying the company’s motion to dismiss the plaintiff’s TCPA claim, the court noted that it was a close call. The Menlo Park, Calif.-based company believes the pending decision by the U.S. Court of Appeals for the District of Columbia Circuit in ACA Int’l v. FCC will better define “automated telephone dialing systems” under the TCPA and will affect the case at hand, the spokesman said. In ACA Int’l, debt collection trade group ACA International Inc. and a number of other companies and trade groups are suing the FCC over what they view as overly restrictive regulations on making automated calls and texts under the TCPA.

Consent

The TCPA, 47 U.S.C. §227, prohibits the use of automated telephone dialing systems without the prior express consent of a consumer to receive unsolicited calls or text messages on a mobile phone.

According to plaintiff Colin Brickman’s first amended class complaint, Facebook sent birthday announcement texts to users without their consent. The texts said: “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 a 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 alleged. 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.

Moving to dismiss the suit, Facebook challenged the constitutionality of the TCPA under the First Amendment—both as applied and on its face.

Content-Based Restriction

The court found that the TCPA’s emergency and government-debt exceptions are content-based, and therefore are subject to “strict scrutiny” review. Under that standard, the government must show that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest,” the court said.

The TCPA serves a compelling interest in protection “residential privacy” and is narrowly tailored, the court concluded.

Denying Facebook’s motion to dismiss the suit, the court found that Facebook failed to show a “plausible less restrictive alternative that would at least be as effective in protecting privacy as the TCPA.”

Judge Thelton E. Henderson wrote the opinion.

Dworken & Bernstein Co. in Painesville, Ohio and Tycko & Zavareei LLP in Oakland, Calif. represented Brickman. Kirkland & Ellis LLP represented Facebook.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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