On Tuesday November 4, 2014, social media giant Twitter, Inc. (“Twitter”) fully submitted a motion to dismiss a Telephone Consumer Protect Act (“TCPA”) class action lawsuit pending against it in the United States District Court for the Northern District of California.  Among other issues addressed in Nunes v. Twitter, Inc., Twitter has attacked the plaintiff’s proposed definition of an automatic telephone dialing system (“ATDS”) within the meaning of the TCPA.  The debate over what constitutes an ATDS has been raging in federal district courts throughout the nation.  Twitter’s most recent motion strongly attacks a recent California holding that classifies an ATDS quite broadly.

The TCPA Autodialer Dispute

Twitter users can sign up to receive certain “tweets” via text messaging on their cellular telephones.  Although Twitter never identifies in its motion how it sends text messages to its members, it alleges that it does not use an ATDS.  In this case, the plaintiff’s cell phone number formerly belonged to a Twitter user before the number was recycled and assigned to the plaintiff, who is not a Twitter user.

Twitter’s motion to dismiss, in part, attacks the plaintiff’s TCPA claim on the basis that Twitter does not use an ATDS within the meaning of the statute.  In its motion, among other things, Twitter argues that it does not use equipment “that has the capacity to generate random or sequential phone numbers and dial those numbers.”  In her opposition, the plaintiff argues that “Twitter wrongly states that in order to be an ATDS the statute requires that the equipment ‘store and produce’ numbers to be called . . . .   It does not; it says ‘store or produce.’”  The plaintiff asserts that numerous opinions from the Federal Communications Commission (“FCC”) support her argument, while Twitter argues that the FCC has never broadly defined an ATDS.  Both parties dispute the state of the existing law.

TCPA Definition of Autodialer Under Existing Law

As we have previously noted, federal courts have split on how to define an ATDS.  In Dominguez v. Yahoo!, Inc., a judge in the Eastern District of Pennsylvania granted summary judgment to the defendant because the plaintiff failed to present any evidence that Yahoo’s e-mail notification system has the capacity to “use a random or sequential number generator to store or produce telephone numbers and then send a text message to those numbers” as required by the TCPA.  In Gragg v. Orange Cab Co., a judge in the Western District of Washington “decline[d] to adopt an interpretation of ‘system’ that would lead to an absurd result” and observed that “[a]dopting plaintiff’s broad interpretation that any technology with the potential capacity to store or produce and call telephone numbers . . . would capture many of contemporary society’s most common technological devices within the statutory definition.”  However, recently in Sherman v. Yahoo! Inc., a California federal district judge declined to dismiss a TCPA suit against Yahoo.  The court in Sherman held that, pursuant to the clear language of the TCPA and controlling precedent, the sole inquiry for the court is whether the equipment “has the requisite current and future capacity to act as an ATDS.”

Protect Yourself

Courts continue to debate what type of equipment constitutes an ATDS within the meaning of the TCPA.  Twitter’s strongly worded motion has now forced yet another district court judge to take up the issue.  We will continue to follow this case and provide updates, but ultimately, the Supreme Court of the United States may well have to decide the issue.

This topic should be of interest to any company or individual engaging in text message marketing and telemarketing, as well as corporate and in-house counsel.