Twitter Forced to Defend TCPA Lawsuit on Text Messages; Possible Ramifications for SMS Use in Collections

Using reasoning from a controversial Circuit Court decision involving a debt collection agency, a federal judge in California has denied Twitter, Inc.’s motion to dismiss a class action TCPA case that alleges it used an “automated telephone dialing system” to send text messages to cell numbers belonging to consumers that had not consented to receive them.

The social media platform had moved to dismiss the potential class action case against it, Nunes v. Twitter.

The plaintiff in the case alleged that she received unsolicited text messages of a promotional nature from the company, even though she had never opened a Twitter account. Nunes says that Twitter is continuing to send the promotional texts to “recycled numbers,” cell phone numbers that previously belonged to people who had provided consent but that had since been transferred to other consumers.

And because Twitter’s technology platform for sending the texts closely mirrors the mechanics of an automated telephone dialing system (ATDS), the texts violated the TCPA.

In considering Twitter’s motion to dismiss, Judge Vince Chhabria, sitting in the Northern District of California, quickly noted that a text message is considered to be a “call” under the TCPA. But determining whether Twitter’s system qualifies as an ATDS was a little trickier.

Relying on the FCC’s interpretation of the statute, Chhabria said that Twitter’s system “appears” to meet the definition of an ATDS.

“Although [the FCC’s] language is not crystal clear, it appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention,” wrote Chhabria. “This appears to be the way predictive dialers worked (the technology at issue in the FCC orders), and it is the way Nunes alleges that Twitter’s equipment works in this case.”

With that out of the way, the judge said that using the precedent set in the Seventh Circuit’s ruling in Soppet v. Enhanced Recovery Co. that Twitter’s arguments for dismissal fail.

The Soppet case, which dealt with prior express consent, has already had an impact in the debt collection industry. Other Circuit Courts have adopted the rationale in the case and it has been at least partially blamed for a rise in TCPA cases brought against ARM firms.

The Nunes case could have further consequences for the industry, however, depending on the final outcome. It directly addresses the way companies facilitate the sending of text messages. The debt industry will need to watch it closely.