Dismissing a complaint against Facebook, a federal court judge in California said the charges of Telephone Consumer Protection Act violations were insufficient to support the putative class action complaint.
Alleging that the social networking site repeatedly sent him unwanted text messages, Noah Duguid filed suit against Facebook. With variations on time, the messages read "Your Facebook account was accessed from Chrome on Windows at 8:15am. Log in for more info." Duguid attempted to stop receiving the texts by replying "Off" and received a message in return that "Facebook texts are now off. Reply on to turn them back on." Despite this exchange, he continued to receive the text messages, he said.
Facebook explained that the messages are a security feature that permits users to activate "login notifications" to provide alerts via text when an account is accessed from a new device. Each message is unique and sent to a single phone number at a specific time when the access occurs, the social network contended.
The defendant moved to dismiss the case, arguing that the plaintiff failed to adequately allege the login notifications were sent by an automatic telephone dialing system, the messages fell within the TCPA's exception for calls "made for emergency purposes," and the texts could not be restricted under the First Amendment because they were noncommercial security messages.
Siding with Facebook on the first argument, U.S. District Court Judge Jon S. Tigar dismissed the suit without addressing the alternative arguments.
"Plaintiff alleges that '[t]he text messages sent to Plaintiff's cellular phone were made with an ATDS as defined by 47 U.S.C. Section 227(a)(1),' and that '[t]he ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator,' " the court wrote. "This conclusory allegation that Facebook used an ATDS is not, without more, sufficient to support a claim for relief under the TCPA."
Because it may be difficult for a plaintiff to identify the specific type of dialing system used without the benefit of discovery, some courts have allowed TCPA claims to proceed beyond the pleading stage where a plaintiff's allegations support the inference that an ATDS was used, Judge Tigar said.
"Where, however, a '[p]laintiff's own allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS,' courts conclude that the allegations are insufficient to state a claim for relief under the TCPA," the court explained.
Duguid failed to meet even this lenient standard. He alleged that login notifications were designed "to alert users when their account is accessed from a new device" and he attached an exhibit to his complaint from Facebook's online Help Center, which explained that users must add their mobile numbers to their accounts in order to receive login notifications by text message.
"These allegations suggest that Facebook's login notification text messages are targeted to specific phone numbers and are triggered by attempts to log in to Facebook accounts associated with those phone numbers," Judge Tigar wrote. "Although Plaintiff alleges that the operation of this system is 'sloppy' because messages are sent to individuals who have never had a Facebook account, have never shared their phone number with Facebook, and/or who have requested deactivation of the login notifications, he does not suggest that Facebook sends text messages en masse to randomly or sequentially generated numbers."
While it was at least possible that Facebook utilized an ATDS, "nothing in Plaintiff's Complaint 'nudge[s] [his] claims across the line from conceivable to plausible,' " the court concluded, dismissing the complaint.
To read the order in Duguid v. Facebook, Inc., click here.
Why it matters: The court dismissed the suit without prejudice, leaving Duguid the opportunity to amend his complaint and try again. But in a victory of sorts for the defendants, the judge made clear that a "naked assertion" that a text message was sent using an ATDS was insufficient to support a claim under the TCPA.