Facebook, Inc. (“Facebook”) recently filed a motion to dismiss class action claims alleging that Facebook sent unsolicited text messages to users containing birthday announcements in violation of the Telephone Consumer Protection Act (“TCPA”). The TCPA generally restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment, and limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines.

Plaintiff Colin Brickman filed a putative class action on February 12, 2016, “to stop Facebook’s practice” of sending unsolicited and unauthorized text messages announcing that it is a Facebook friend’s birthday and stating “[r]eply to post a wish on his timeline or reply with 1 to post ‘Happy Birthday!’” A copy of the Complaint is available here.  Plaintiff alleges that these text messages are in violation of individuals’ statutory and privacy rights and, further, that individuals are paying to receive messages that were sent without their prior express consent (this latter argument would only be applicable to consumers that do not have an unlimited text messaging cell phone plan).  The benefit to Facebook, plaintiff alleges, is significant, as the messages encourage interaction among users on its site, and any time its users interact the company earns revenue.

In its motion to dismiss, Facebook argues that (1) plaintiff fails to plausibly allege that Facebook sent the birthday text message with an “automatic telephone dialing system,” as defined by 47 U.S.C. §227(a)(1), (2) plaintiff provided express consent to receive calls from Facebook, and (3)  the TCPA violates the First Amendment on its face as applied to the birthday text message at issue. Facebook states in its motion that plaintiff brought a putative class action under a statute that protects against mass telemarketing and spam, however plaintiff gave Facebook his cell phone number and received personalized messages regarding his friends, in contrast to the mass communications that the TCPA intends to prohibit. Further, Facebook argues that plaintiff  consented to receiving birthday messages by providing the company with this wireless number. “Unlike cases involving ‘recycled phone numbers’ or other cases involving disputes over whether a plaintiff provided his phone number, plaintiff’s admission makes this a textbook case of prior express consent,” Facebook said. Facebook also argues that, if the Court does find the TCPA applicable to the birthday text messages at issue, the Court should find the statute itself in violation of the First Amendment on the basis that it’s a content-based restriction of speech that cannot survive strict scrutiny.

In its motion Facebook also questions whether plaintiff has sufficient standing under Article III to assert a TCPA claim since plaintiff alleges that “individuals frequently pay their cell phone service providers for the receipt of . . . unwanted texts,” yet fails to allege that he pays for receipt of each of his text messages (as opposed to having an unlimited text messages cell phone plan, in which case he would not have suffered any economic harm). Facebook cites to the pending Spokeo, Inc. v. Robins case, pending before the  Supreme Court, to support  this argument. See more here.  If the Facebook complaint survives dismissal and the suit proceeds, plaintiff can seek $500 per violation, i.e. each text message, or $1,500 per violation if plaintiff can show a willful violation. A copy of Facebook’s pending motion can be found here.