On July 31, Facebook, Inc. (“Facebook”) submitted reply papers to the United States District Court for the Northern District of California, arguing that a putative Telephone Consumer Protection Act (“TCPA”) class action lawsuit must be dismissed. Facebook’s reply papers argued that the automatic text message notifications sent by Facebook to its users are not sent using an automated telephone dialing system (“ATDS”), but instead require human intervention to be sent. Facebook also argued that its text message notifications, sent only when requested by the user to inform him or her about possible unauthorized access to the user’s account (and potential personal and financial information stored in such accounts), are sent for “emergency purposes” only and, thus, are exempted under the TCPA. Complicating the facts involved in this action further, the named plaintiff and class representative claims that he has never had a Facebook account. In its motion papers, Facebook speculated that the previous owner of the named plaintiff’s cellular telephone number must have registered for Facebook notifications.

What Constitutes an “ATDS” and “Emergency Call” Under the TCPA?

Facebook Argues that it does Not Use an ATDS and that its Text Notifications Qualify as Emergency Calls Under the TCPA

In moving to dismiss the putative TCPA class action lawsuit, Facebook set forth a number of arguments, including a First Amendment challenge to the TCPA. However, the two primary arguments Facebook has made in its reply papers are that it does not use an ATDS to send text message notifications, and that its text message notifications qualify as emergency calls under the TCPA. Regarding the ATDS argument, Facebook suggests that it cannot be said to use an ATDS because users must enter their cellular telephone numbers themselves into Facebook’s database, and it is this entry of the users’ cellular telephone numbers that triggers the sending of text message notifications. In opposition, plaintiff’s counsel has argued that a defendant can only claim human intervention as a defense if a human being dials the cellular telephone number that receives the subject text message.

Facebook also maintains that its text message notifications qualify for the emergency exception to the TCPA. In making this argument, Facebook notes that sensitive financial information, such as credit card and bank account information, may be stored in its users’ accounts. Accordingly, if there is a possibility that a Facebook account is being accessed without authorization, an account-related notification sent to the user concerning the issue should (per this line of reasoning) qualify for the emergency exception to the TCPA. Plaintiff opposed this argument, noting that pursuant to definitions promulgated by the Federal Communications Commission, “[t]he term emergency purposes means calls made necessary in any situation affecting health and safety of consumers.” Plaintiff cites, by way of example, situations where utility companies send notifications about power outages, or police agencies issue AMBER alerts. Plaintiff argues that the subject Facebook account notifications clearly do not rise to the level of emergency contemplated by the government when it crafted this TCPA exception.

Next Up: Oral Argument

We previously blogged about the commencement of the underlying action in March. The Court is scheduled to hear oral arguments on Facebook’s motion to dismiss on September 3. As we have noted in previous blogs, the definition of ATDS under the TCPA has been hotly contested, especially in California federal courts. The Court in this action must now rule on Facebook’s ATDS argument, as well as its unique emergency purposes argument.