FACEBOOK LOSES FIRST AMENDMENT CHALLENGE TO TCPA

The social media platform Facebook recently lost a First Amendment challenge to the federal Telephone Communications Privacy Act. While the case is bad news in the short term for Facebook, the rejection of the constitutional challenge could have long term consequences for the entire industry.

The case concerns birthday messages. Facebook employed computer software to send Birthday Announcement Texts to users. In 2015, Facebook, through its short code SMS number 32665033, texted to Colin Brickman’s cell phone number an unsolicited Birthday Announcement Text stating “Today is Jim Stewart’s birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!’”. Although Brickman supplied Facebook his cell phone number, which is associated to his Facebook page, Brickman indicated in the Notification Settings of his Facebook account, prior to receiving the text message, that he did not want to receive any text messages from Facebook.

And Brickman apparently was serious about it. On February 2, 2016, Brickman filed a class action suit against Facebook, alleging Facebook violates the TCPA by sending unauthorized text messages. Brickman asked the court to allow him to represent the class of “[a]ll individuals who received one or more Birthday Announcement Texts from Defendant to a cell phone through the use of an automated telephone dialing system at any time without their consent.”

A valid TCPA claim requires plaintiff to allege (1) Defendant called a cellular telephone number; (2) using an automated telephone dialing system (“ATDS”); and (3) without the recipient’s prior express consent. A text message is a “call” within the meaning of the TCPA.

Brickman alleged that Facebook employs computer software to send “Birthday Announcement Texts” without human intervention to users. According to his complaint, Facebook’s computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the users’ Facebook friends who will receive the Birthday Text Announcement Texts for a particular user’s birthday; identifies the cell phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user’s Facebook friends, creates the Birthday Announcement Text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then causes the text messages to be sent from that queue.

Facebook argued the text message was triggered by human intervention, in that Brickman signed up for Facebook and linked his cell number to his profile. And in addition to these technical arguments, Facebook contended the TCPA violates the First Amendment. In its view, based on a recent U.S. Supreme Court case that struck down an Arizona sign ordinance, a law triggered by the content of a message is subject to “strict scrutiny” – a standard that is almost impossible for the government to satisfy.

The good news for Facebook was the court agreed that the TCPA is “content based” – certain messages, such as emergency messages, are exempt based on their content. Others are not, again based on the content. That meant the court applied the strict scrutiny analysis. The bad news for Facebook was that in this case, the court concluded that the TCPA satisfied the standard.

In order to survive strict scrutiny, the government must prove the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Here, the court concluded the government has a compelling interest in protecting residential privacy. The TCPA is designed to do just that.

And the court concluded the TCPA is narrowly tailored. In support of its argument, Facebook argued the TCPA was “under-inclusive” – meaning it did not actually address all of the instances necessary to achieve its purpose. In the Supreme Court’s sign ordinance case, for example, there were 33 exemptions to the ordinance. But the TCPA has only two exemptions. The court concluded it was not under inclusive.

Facebook also argued that in other respects, the TCPA was over inclusive. That is, it sweeps too much interaction under its provisions. The court rejected this argument as well. In its view the TCPA is limited to a narrow subset of automated calls made without the recipient’s consent. It does not restrict individuals from receiving any call they want to receive. Any speech that the TCPA would cover is removed from that coverage once the consumer consents.

The immediate effect of the ruling is that Facebook will have to defend Brickman’s suit on fairly technical grounds. The big constitutional defense for now is off the table. And consumers will continue to enjoy protection from unwanted communications.

CANCELLING GYM MEMBERSHIP DOESN’T REVOKE TCPA CONSENT

A California man recently discovered that cancelling a gym membership means only that – the membership goes away. Other aspects of the membership may remain. In this case, the consent to received automated messages.

In March 2009, Bradley Van Patten visited a Gold’s Gym franchise in Green Bay, Wisconsin to obtain information about a gym membership (and probably to get out of a blizzard). During the visit, Van Patten submitted a desk courtesy card to the gym. On the card, he wrote his demographic, financial, and contact information to determine whether he was pre-qualified to become a member. In this data Van Patten listed his cell phone number as his contact number.

Van Patten then met with the gym’s manager to discuss a possible membership. During this conversation, the manager filled out a Gold’s Gym Membership Agreement on behalf of Van Patten, which Van Patten signed. The manager wrote Van Patten’s cell phone number in the phone number field. Within three days of opening his gym membership, Van Patten called Gold’s Gym to cancel his membership. Van Patten moved to California in the summer of 2009, but he kept his Wisconsin cell phone number.

In Spring 2012, many of the Gold’s Gym franchises in Wisconsin and Minnesota, including the gym that Van Patten had joined, ended their franchise relationships with Gold’s Gym and became “Xperience Fitness” gyms. Vertical Fitness owned the “Xperience Fitness” brand and trademark.

After the brand change, Vertical Fitness asked its marketing partner Advecor, Inc., to help announce the gym’s brand change to current and former gym members and invite members to return. One such announcement was made via text messages. Vertical Fitness gave the phone numbers of former or inactive gym members to Advecor, and Advecor sent the text messages. Van Patten received his first text message on May 14, 2012. The message read:

Golds [sic] Gym is now Xperience Fitness. Come back for $9.99/mo, no commitment. Enter for a chance to win a Nissan Xterra! Visit Myxperiencefitness.com/giveaway

He received a similar text on June 25, 2012.

Van Patten filed a class action lawsuit arising out of the text messages on June 28, 2012. Included in his suit was a claim that Vertical and Advecor violated the federal Telephone Consumer Privacy Act by sending an unauthorized automatic message to his cell phone. In May 2014, the trial court granted summary judgment in favor of the two defendants on all of Van Patten’s claims. The Ninth Circuit Court of Appeals affirmed that ruling.

The appellate court ruled there is no TCPA claim when a consumer gives express consent to receive the message. In this case, the appellate court agreed with the trial court that Van Patten gave prior express consent to receive the text messages, by providing his cellular telephone number for the purpose of a gym membership contract with a Gold’s Gym franchised gym. The scope of his consent included the text messages’ invitation to “come back” and reactivate his gym membership. The text messages in the case were part of a campaign to get former and inactive gym members to return, and thus related to the reason Van Patten gave his number in the first place, to apply for a gym membership.

And while the appellate court agreed that a consumer may revoke TCPA consent, Van Patten failed to demonstrate that he’d done so. As the court noted, “[r]evocation of consent must be clearly made and express a desire not to be called or texted.” That was not done here. No evidence in the record suggests that Van Patten told Defendants to cease contacting him on his cell phone. Van Patten could have communicated his revocation by plainly telling Defendants not to contact him on his cell phone when he called to cancel his gym membership or messaging “STOP” after receiving the first text message. He didn’t do that.

Van Patten expressly cancelled his gym membership, but apparently didn’t think to revoke his consent to be contacted. I imagine he had no desire to hear from the gym, but a requirement that a person “expressly” do something requires just that – an expression. Van Patten gave none and it torpedoed his suit.