New TCPA Caselaw: Facebook and Texts

One of the more interesting types of cases that we handle are TCPA cases, which is short for the Telephone Consumer Protection Act.

The TCPA prohibits automatic dialing systems, that randomly call telephones as part of a marketing effort (amongst other things). A number of this firm’s clients have been sued in the past and accused of using an automatic dialing system to call prospective clients. There have always been a number of defenses available in TCPA cases, including a pre-existing relationship with the recipient of the phone call, or that the call was not made by an automatic dialer.

Recently, the US Supreme Court issued a ruling, in a case brought against Facebook, regarding automatic telephone dialing systems under the Telephone Consumer Protection Act. And the Supreme Court ruled that text messages sent by Facebook, to alert users of suspicious login attempts, do not qualify as robocalls or automatic dialer calls under the TCPA.

The case was originally brought by a plaintiff who had received text messages from Facebook. The plaintiff accused Facebook of violating the ban on using automatic telephone dialing systems, in order to send him the text messages. His phone number had previously belonged to another user of Facebook who the text messages were meant for.

An appellate court originally sided with the plaintiff, interpreting the robocall law to include all services that send out automated texts to non-randomized numbers – just like the activity that the plaintiff was subject to, and just like texts that Facebook and other companies send.

Facebook appealed to the Supreme Court, arguing that automated texts are commonplace and that websites send them to users all the time. Facebook’s argument in the case was that automated telephone dialing systems call numbers randomly, and that it’s use of a machine to call specific numbers does not count as random, because those numbers are sent from a set list. The plaintiff’s number was only on the list because someone – who previously owned the plaintiff’s phone number – had provided it to Facebook as an account holder.

The Supreme Court ruling seems to limit the scope of the Telephone Consumer Protection Act, excluding companies that send out automated texts from the scope of its requirements. Consumer rights advocates criticized the decision, saying that it would give license to companies to further flood consumer telephones with unwanted messages.

However, in my opinion, saying that a number was messaged from a set list (because the number had been given to the sender by someone who owns or used to own the number), should fit squarely within the defenses available under the TCPA to any business that sends a message. In my view, the TCPA is intended to prevent random messaging, not messaging which the sender intended to reach a specific recipient, who had provided the number to the sender at some prior time.