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Lawsuit Claims Facebook's Birthday Reminder Texts Violate Telemarketing Law

By William Vogeler, Esq. on May 03, 2017 | Last updated on March 21, 2019

What would we do if Facebook didn't remind us of all those birthdays?

That's a 156 million-user, class-action question, at least in the United States. A proposed class action says the automatic text reminders violate the Telephone Consumer Protection Act. The plaintiff says the text messages sent to users' cell phones are just like unsolicited robocalls outlawed by the TCPA.

For now, a federal judge in San Francisco has put the case on hold while the appeals court decides whether to step into the debate. In the meantime, the judge said Facebook has presented an interesting question.

"In regard to the question addressing the constitutionality of the TCPA, the Court acknowledges this was a novel issue of first impression," Judge Thelton E. Henderson said in granting the company's request to pursue an interlocutory appeal in Brickman v. Facebook.

Freedom to Text?

The case stems from a complaint by Colin Brickman, who alleges that he signed up for Facebook but told the company he didn't want to receive text messages. But as soon as a friend's birthday came up on the Facebook calendar, Brickman received a text reminder and so he sued.

Facebook filed to dismiss, claiming the TCPA was unconstitutional because it restricted the company's free speech rights to send text messages. Henderson denied the motion, saying the law served a "compelling interest in promoting residential privacy."

However, he granted the company's motion to stay the proceedings and to appeal. The judge said the U.S. Ninth Circuit Court of Appeals is already considering the issue in another case.

Recycled Phone Number

In Duguid v. Facebook, the plaintiff alleges that Facebook repeatedly sent him text messages even though he never used the social networking site. Noah Duguid apparently had been assigned a recycled phone number, which had previously been linked to a Facebook account. The trial judge dismissed that case, but the appeal is pending.

Meanwhile, the U.S. Circuit Court of Appeals for the District of Columbia is also considering a dispute over robotexting. In granting Facebook's motion to stay the Brickman action, Henderson said he will wait for the DC court's ruling if the Ninth Circuit does not resolve the issue.

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