A Northern District of California judge denied Twitter’s motion to dismiss a Telephone Consumer Protection Act lawsuit, rejecting the company’s arguments that recipients had consented to the text message and that Twitter’s system did not constitute an automatic telephone dialing system (ATDS) under the statute.
The lawsuit was filed by the recipient of text messages from the popular microblogging site. She claimed that Twitter should have checked for “recycled” numbers, or cellular telephone numbers that have been deactivated by a user and then reassigned to a new subscriber before sending its messages.
Twitter responded with a motion to dismiss the California federal court putative class action. The company should not be held liable under the statute when a former user of a cellphone number provides consent to receive text messages and the phone number is later transferred, Twitter told the court, asking how a defendant could be aware of such a switch.
But U.S. District Court Judge Vince Chhabria sided with the plaintiff. “This argument fails,” the court said. He cited a decision from the Seventh U.S. Circuit Court of Appeals in Soppet v. Enhanced Recovery Company, where the federal appellate panel explained that “only the consent of the subscriber assigned to that cell number at the time of the call (or perhaps the person who answers the phone) justifies an automated or recorded call.”
Turning to the issue of whether Twitter’s system constituted an ATDS, the plaintiff contended the company’s equipment “stores” telephone numbers and then “dials” those numbers without human intervention.
Twitter said the statute additionally requires that the equipment must have the “capacity” to “generate” numbers using a “random” number generator or a “sequential” number generator. Because the company’s equipment simply stores and dials numbers from a database, it does not have the capacity to generate numbers and therefore is not an ATDS, Twitter argued.
Section 227(a)(1) of the statute defines an ATDS as “equipment which has the capacity: (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
In orders released in 2012, the Federal Communications Commission construed the provision to cover “any equipment” with the capacity to “generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists,” including “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.”
Taking an expansive view of the FCC’s interpretation of Section 227(a)(1), Judge Chhabria found that Twitter’s system constituted an ATDS. Although the language from the FCC “is not crystal clear, it appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention,” he wrote. “This appears to be the way predictive dialers worked (the technology at issue in the FCC orders), and it is the way [the plaintiff] alleges that Twitter’s equipment works in this case.”
Two other federal courts have held that the FCC orders unlawfully expanded the statute’s definition of an ATDS, the court noted, in California and Pennsylvania. But Twitter did not explicitly request that the court reject the FCC’s interpretation of the statute, the judge said, simply asserting that the orders were distinguishable. Therefore, “the court declines to consider at this stage whether the FCC’s definition constitutes an unlawful expansion of the statute, particularly where Twitter has not made that argument and courts are in disagreement about it.”
To read the order in Nunes v. Twitter, click here.
Why it matters: Not only did the Twitter decision produce a bad result for the defendant seeking to dismiss the suit, it continued the conflicting results in federal court decisions construing the definition of what constitutes an ATDS under the statute. While Judge Chhabria noted that California and Pennsylvania courts have found the FCC orders unlawfully expanded the understanding of the term under the TCPA, his opinion joins other courts – including in Illinois – tracking the language of the FCC. The various holdings provide an important reminder to businesses to be cognizant of the equipment used to send text messages or place telephone calls, given the current uncertainty about how a judge may rule on the issue.