Twitter may be potentially liable for unwanted texts sent to “recycled” phone numbers under the TCPA. The Northern District of California denied Twitter’s motion for partial summary judgment inNunes, et al. v. Twitter Inc., No. 3:14-cv-02843 (N.D. Cal. July 1, 2016). Plaintiff Beverly Nunes brought suit individually and on behalf of a proposed class of persons who received unwanted texts from Twitter on their cell phones that were assigned a recycled — or previously issued — phone number. Both parties filed cross-motions for partial summary judgment on two issues: (1) whether Twitter can potentially be liable to Nunes under the TCPA, and (2) if Twitter is potentially liable, would it nonetheless be shielded from liability under the Communications Decency Act of 1996.
In denying Twitter’s cross-motion for summary judgment, Judge Vince Chhabria rejected Twitter’s arguments that it should not be considered responsible for sending unwanted tweets delivered via text message. The court held that Twitter is the actual sender of the texts and therefore the entity making the “call” under the TCPA. In his brief tutorial on how Twitter works for the social-networking novice, Judge Chhabria explained that Twitter takes the author’s 140-character maximum tweet and converts it to a format that can be delivered via text. As Twitter delivers the ultimate text, the court considered Twitter to be the entity making the “call” for purposes of liability under the TCPA.
Judge Chhabria rejected Twitter’s argument that the author of the tweet could be considered the maker of the call, since the author does not know or control who signs up to receive his or her tweets via text message, as Twitter does not share that information with any author. Furthermore, since the author is not involved in the “mechanics” of converting a tweet into a text, the author could not know if he or she was making a “call” when a tweet is composed, and must be eliminated as the “maker” of the call or text for purposes of TCPA liability.
The court also rejected Twitter’s argument that based on the definition of “initiate” in the July 2015 FCC Order, the former owner of the cellular telephone number signed up to receive tweets, it thus initiated the tweet and could be considered the “maker” of all of the text messages to that phone number in the future. See Rules & Regulations Implementing the Telephone Consumer Prot. Act of 1991, et al., 30 FCC Red. 7961 (2015). The court distinguished the facts in Nunes from the YouMail and TextMe situations discussed in the 2015 FCC Order in which the individual app users took specific and affirmative steps to initiate or place a specific call or text to either their personal contact list or an incoming caller. The court did not find that the former cell phone owner had sent an “invitational text message” as defined under the 2015 FCC Order.
Finally, the court dismissed Twitter’s argument that it was immune from plaintiff’s suit based on the Communications Decency Act. Under 47 U.S.C. §230(c)(1), the Act bars any lawsuit brought against an “interactive computer service” in which the lawsuit seeks to hold the service liable as “the publisher or speaker of any information provided by another information content provider.” The court held that Twitter attempts to shield itself from liability as a publisher of content were without merit as the content of the text was not at issue, but rather the sending of the text itself.