Facebook's Arguments on Alleged TCPA Violations May Fall Flat, Say Experts

"The courts have, to my knowledge, perhaps universally, upheld [TCPA's] constitutionality as a permissible restriction on speech because it’s directed primarily, if not exclusively, to commercial speech, which is entitled to less protection than other forms of speech," said Eckert Seamans attorney Kevin Allen. Several others, including David Klein, managing partner with Klein Moynihan, and Margot Saunders, an attorney with the National Consumer Law Center, agreed, saying TCPA has faced multiple challenges and withstood them all. The experts said they didn't know the details of this particular lawsuit.

Facebook is asking the district court to dismiss Washington, D.C., resident Christine Holt's lawsuit, filed in April and amended in July. In her complaint (in Pacer), Holt, who said she "is not a www.facebook.com user," said after getting her new number in March she "almost immediately ... began receiving impersonal, promotional text messages" that she later found out were from Facebook. She said she never gave consent to the company to contact her, didn't express any interest to get messages and didn't give her number to Facebook or a third party working on its behalf. She contacted Facebook to stop texting her, but the company "disregarded" her appeals, she said. Thousands of people have received such unsolicited messages, said Holt, who's seeking $500 in damages for each TCPA violation.

Facebook told the court it should reject Holt's complaint because she "alleges no plausible set of facts showing that the status update messages were sent using an" automatic telephone dialing system (ATDS). Second, the company in its Aug. 16 response (in Pacer), said TCPA should be "struck down as an unconstitutional content-based speech restriction, both on its face and as applied."

DOJ said in its filing the court should resolve all other issues in the case before addressing TCPA's constitutionality. But in its Oct. 17 filing, DOJ, which didn't take a position on the nonconstitutional issues raised in the case, said the 9th U.S. Circuit Court of Appeals twice has addressed this issue and both times "rebuffed First Amendment challenges to the statute, holding each time that the Act withstands intermediate scrutiny." It said the law is constitutional. In its Tuesday response (in Pacer) to DOJ, Facebook said status update messages don't propose any transaction, but notify Facebook users "about their friends' activity and reminded that person that he or she had not posted a status update to Facebook in a while." Klein said he didn't know the details of the Facebook case but called the company's argument likely "a bit of a stretch" and "creative. I'd be surprised if it carries the day."

Electronic Frontier Foundation senior staff attorney Lee Tien emailed he didn't think either Facebook or the government side made strong arguments, but he gives the edge to DOJ for a "sound" argument about emergency exceptions. In its filing, Facebook said TCPA is unconstitutional because its exceptions "render it a content-based restriction of speech that triggers strict scrutiny, and the Court should strike it down." But the government said TCPA is "content-neutral" and Tien said if you started with such a law "and then wrote an exception for emergency circumstances (i.e. allow your doctor or your real estate agent or your bank to 'break the glass' in an emergency), one wouldn’t conclude that the entire law is content-based simply because of the emergency exception. One might even think that the emergency exception makes the law 'fit' the real world better." Attention should be paid on how exceptions work and their effects, he said, but the statute should be viewed as a whole.

Experts said Facebook also may have a tough time arguing Holt didn't show that an ATDS was used to send her messages. TCPA is aimed at protecting consumers from unauthorized and autodialed calls, faxes and text messages unless organizations have gotten prior consent or messages are sent during emergencies. Klein said under the statute, "it's whoever receives the text message or phone call that determines whether consent has been provided or not. If the prior owner provided consent and a new owner of the phone number gets the call or the text message without providing that consent that’s a violation of the TCPA." He said the law does allow an organization to make one call or text to find out if cellphone user still holds that number, but he said he advises his clients not to send a follow-up text or call if that person hasn't responded to that one call or text.

NCLC's Saunders said Facebook could contact its users through the networking site to confirm whether they have given express consent or even look up several databases to find out who owns a particular number. She said it's incumbent on a caller, Facebook in this instance, to find out. She said the databases are "the only tool we have on the books right now to stop the running robocalls." Unfortunately, she said, it's cheaper for companies to make the robocalls using autodialers.

Several members of Congress said they likely will look at updating certain parts of the statute (see 1610250045). Klein said lawmakers are revisiting some provisions of TCPA regulations, specifically dealing with the definition of autodialers, opt-out requests and other aspects. Allen said much of the technology to send texts or calls doesn't fall within the statutory definition of ATDS. He said the FCC tried to expand the ATDS definition, but many defendants are challenging the commission's ability to essentially rewrite the statute. Allen said TCPA is "ripe for reexamination and reform" since it attracts many lawsuits. But, in her May testimony before the Senate Commerce Committee, Saunders said only 3,710 TCPA lawsuits were filed last year despite 3.5 million complaints to the FTC for unwanted calls.