In a surprisingly whimsical decision that paid homage to a retiring magistrate judge and poked fun at Ayesha Curry, the United States District Court for the Northern District of California held that Twitter, Inc. (“Twitter”) is the “maker” of unwanted text messages containing tweets within the meaning of the Telephone Consumer Protection Act (“TCPA”). The case involves an owner of a “recycled” cellular telephone number- one owned by a prior customer. It seems that the previous owner of the telephone number at issue signed up to receive text messages containing “tweets” of people he/she followed on Twitter. The plaintiff, and current owner of the telephone number, does not use Twitter. After replying to some text messages in an attempt to get Twitter to stop sending them, the plaintiff brought the subject putative class action lawsuit. Both the plaintiff and Twitter moved for summary judgment on the question of who is the “maker” of the unwanted text messages. Twitter argued, alternatively, that either the person tweeting or the previous phone number owner should be considered the “maker” of the text messages under the TCPA. The Court disagreed.
Why did the Court Hold Twitter to be the “Maker” of Text Tweets Under the TCPA?
Twitter is Maker of Text Tweets for TCPA Purposes
Twitter offers users the ability to receive text messages containing tweets of other users. In moving for summary judgment, Twitter argued that for TCPA purposes, either the author of the original tweet or the prior owner of the telephone number should be deemed the “maker” of the subject unwanted text tweets. However, Twitter’s chief argument was one of fairness: How can Twitter be sued and subject to damages if it is unaware that a particular telephone number in its database has been recycled or assigned to a different user? The Court’s response was straightforward: use another medium to communicate with consumers. The Court reasoned that “it’s unclear why the desire to send alerts by text message (rather than email, or push notification through an app) should prevail over the TCPA’s goal of protecting people with recycled numbers from receiving unwanted texts sent by companies using autodialers.”
The Court also pointed to a ruling issued by the Federal Communications Commission (“FCC”) and observed that:
[T]he FCC made clear that, at least in the context of actual telephone calls, companies may sometimes escape liability for the first call made to a recycled cell phone number . . . . At times the FCC seemed to suggest that this “one free call” concept applies to text messages as well . . . . However, it seems unrealistic to expect that companies could, at least in some circumstances, readily detect that a number has been recycled after sending one text. If the FCC is correct that the statute can be interpreted as excusing one telephone call to a recycled number, perhaps it could be interpreted as allowing for a more forgiving (and more realistic) standard to be applied to text messages.
Ultimately constrained by the letter of the law, the Court concluded its opinion by noting that “[i]t seems likely that Congress, when it enacted the TCPA, did not consider whether companies like Twitter . . . could be liable for sending text messages to recycled numbers. But ‘[i]f Congress has failed to appreciate changes in the telecommunications business, [these companies] should alert their lobbyists.’”
While some businesses have been able to use novel arguments to avoid TCPA liability, this ruling against Twitter highlights that even unintended violations of the TCPA may have serious consequences.