Does Facebook text reminder software fit federal telemarketing law’s definition of ‘autodialer’?

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A federal judge in California on Thursday granted Facebook’s motion for an interlocutory appeal in a lawsuit involving automated birthday text reminders sent to users by the online social networking service.

Plaintiffs in the proposed class action (PDF) argue that the reminders violate the Telephone Consumer Protection Act, Law360 reported (sub. req.).

Facebook argues the federal law is unconstitutional based on government speech regulation protections. It also argues that software used to send reminders does not fit the definition of an “automatic telephone dialing system” as defined in the statute.

Additionally, Facebook maintains that the named plaintiff, Colin R. Brickman, opted to receive notifications when he signed up for the service.

The appeal would be filed in the San Francisco-based 9th U.S. Circuit Court of Appeals.

The Department of Justice also filed a brief in the case in support of the TCPA, Law360 reported.

In January, U.S. District Court Judge Thelton E. Henderson found there was enough evidence for the case to go forward, and Facebook responded with a motion to certify the order for interlocutory appeal. In his
order (PDF) granting that motion, Henderson noted that there’s a split among district courts across the country regarding what meets the TCPA’s definition of an autodialer, Law360 reported.

“While the court found the TCPA survived strict scrutiny, it is plausible that other courts could have endorsed the opposite result,” Judge Henderson wrote. “This is especially true in light of case law explaining the high bar that strict scrutiny presents.”




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