Twitter Loses Summary Judgment Bid in TCPA Claim

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

Last week a California federal court ruled that Twitter, Inc. is liable under the Telephone Consumer Protection Act (“TCPA”) for tweets it sent via text message to the new owner of a recycled cell phone number. The Court found that the online social networking service was the “sender” of the tweets, as that term is defined under the statute, rather than the authors of the tweets or the former owner of the cellphone who opted to receive the text messages.  In doing so, the Court reiterated the Federal Communications Commission (the “FCC”)’s previous caution that where autodialers are utilized to make robocalls to a wireless number, it is the caller – and not the wireless recipient of the call – who bears the risk that the call was made without the prior express consent required under the statute.  The Court also found that Twitter could not be shielded from liability under the Communications Decency Act of 1996.

Plaintiff Beverly Nunes brought a class action in 2014 after subscribing to a cell phone number that had previously been assigned to a user who had opted to receive tweets via text (“tweets-as-texts”). (Although Twitter users primarily receive “tweets” using apps or browsers, Twitter allows its subscribers to elect to receive tweets from particular users by text message.)  Both parties moved for summary judgment on the lawsuit’s individual claims.

Ms. Nunes argued that Twitter was violating the TCPA by sending tweets-as-texts to her recycled phone number, relying on the FCC’s July 2015 Order, which states that an entity who is “‘so involved in the placing of a specific telephone call’ as to be deemed to have initiated it” will be liable under the TCPA.

Twitter’s defense was two-fold. First, Twitter argued that its conversion of tweets to text message did not render it a “sender” or “maker” of the messages as required to incur liability.  Under Twitter’s theory, either the party who authored the “tweet” or its recipient should be considered the “sender” under the TCPA.  The Court dispensed with this argument by finding that no person or entity other than Twitter could reasonably be found to be the “sender” of the text messages.  The Court distinguished two other instances in which the FCC had considered users of social media apps rather than the social media company to be the “senders” of text messages.  Unlike Textme, an app where the user through a series of commands can send a text message her contact list, or YouMail, where the user programs his app so that when someone calls his cell phone a text message is automatically sent to the caller, the Court found that the Twitter-using former owner could not place a specific call to any person through the receipt of tweets to the recycled number because he was not choosing to send a text message to the recipient and did not have involvement in the process of creating and sending the tweets.  The Court also noted that in its 2015 Order, the FCC explicitly addressed the question of texts to reassigned numbers and ruled that (after one initial text or call to a reassigned number) the sender would be liable notwithstanding having received consent from a prior subscriber.

Second, Twitter argued that it was shielded from liability by the Communications Decency Act, which bars any lawsuit against an “interactive computer service” if the lawsuit seeks to treat the service as “the publisher or speaker of any information provided by another information content provider.”  The Court rejected this argument as well, finding the comparison between Twitter and a “publisher” inapt based on Ninth Circuit case law which defines publishing as involving “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.”  The Court noted that Twitter’s liability under the TCPA did not depend on the content of any tweet and was more comparable to a nuisance claim.

While certain aspects of this decision are specific to the particular way in which Twitter operates, the ruling is yet another reiteration of the FCC’s insistence on imposing TCPA liability for calls or text messages to reassigned cell phone numbers, even where the sender obtained consent from the original subscriber and has no knowledge of the reassignment.