Kyla Asbury Sep. 25, 2014, 10:59am

SAN FRANCISCO (Legal Newsline) - Twitter has filed a motion to dismiss a class action lawsuit against it for allegedly violating the Telephone Consumer Protection Act.

"This case is another in a growing line of abusive, putative class action lawsuits brought under the Telephone Consumer Protection Act," the Sept. 16 motion to dismiss states. "The statute, intended to curtail certain kinds of invasive telemarketing practices, has been co-opted by the plaintiffs’ bar to seek windfalls for practices and from companies that Congress never intended to regulate."

Twitter is a free online service that allows users to post short messages, known as tweets, that can be read by other Twitter users.

"One way that users can view Tweets is as text messages, which they sign up to receive by giving Twitter their cell phone numbers," the motion states. "Sometimes, however, users change phone numbers and those numbers are reassigned to other people without Twitter’s knowledge. That is what happened here."

The plaintiff alleges that shortly after she activated her new cell phone, she began receiving text messages from Twitter, according to the motion.

"These messages were Tweets requested by the former user of plaintiff's cell phone number," the motion states. "Sensing an opportunity, plaintiff sued Twitter, demanding at least $500 in statutory damages for each text message Tweet she received. She also seeks to represent a class of all those who received Tweets via text messages to cell phone numbers recycled from Twitter users. Plaintiff’s claim fails as a matter of law."

As an initial matter, Twitter’s texts were not sent using an "automatic telephone dialing system or an artificial or prerecorded voice," according to the motion.

Congress expressly limited the definition of "automatic telephone dialing system" to equipment that has the capacity to generate random or sequential phone numbers and dial those numbers.

"Plaintiff does not — and cannot — allege any facts making it plausible that Twitter uses such equipment," the motion states. "That is not surprising. Twitter sends Tweets by text only to users who give their phone numbers to Twitter for the purpose of receiving them."

The plaintiff tried to avoid this problem with her claim by asserting that any equipment capable of automatically dialing numbers from a list is an ATDS, according to the motion. But that impermissibly reads the words "using a random or sequential number generator" out of the statute, Twitter says.

"It also would create profound practical problems, making an ATDS out of virtually any modern telephone," the motion states. "Congress could not have foreseen or desired such a dramatic expansion of the TCPA."

Twitter claims the plaintiff also tried to circumvent the ATDS requirement altogether by alleging that the text messages she received were calls sent using "an artificial or prerecorded voice."

"That defies common sense and finds no support in the statute’s text or case law," the motion states. "It would also subject all text messages—no matter the equipment used or the purpose of the communication—to potential TCPA liability. The court should reject Plaintiff’s wordplay."

Finally, the text messages in question were sent with the "prior express consent of the called party."

"It is clear that Twitter intended the messages to go to the user who expressly consented to receiving them at the cell phone number he supplied," the motion states. "Sending texts to that number did not violate the TCPA. That is because the 'called party' whose advance consent must be secured is the intended recipient of the call (based on the information the caller had when the call was made)."

Twitter claims the plaintiff claims otherwise and that she suggests that, as the new holder of the phone number, only her consent matters. But that misreads the statute and creates serious constitutional problems.

"Requiring callers to obtain prior consent from unintended recipients of a call means strict liability for all calls made to friends, family, colleagues or customers at phone numbers they happen no longer to control," the motion states. "That would turn dialing or texting into a game of Russian roulette, chilling a wide range of constitutionally protected communications and violating both the Due Process Clause and the First Amendment."

Beverly Nunes filed the lawsuit on June 19 in the U.S. District Court for the Northern District of California.

Nunes claims in November, she obtained a new cell phone number from MetroPCS and almost immediately, she began to receive impersonal, promotional text messages several times per day.

Nunes claims the messages were coming from "40404," which she later learned from Twitter's SMS short code.

Despite replying for the messages to stop at least twice, Nunes continued to receive the unauthorized text messages, receiving as many as four to six messages per day at all hours of the day and night, including message before 8 a.m. and after 9 p.m., according to the suit.

"At no time did plaintiff give prior express consent to Twitter to receive SMS text messages from it, let alone consent to receive autodialed telemarketing messages," the complaint states. "Plaintiff has never had a Twitter account, has never used or followed Twitter and has no pre-existing relationship with either Twitter or the advertisers for the text messages she received."

Nunes claims Twitter violated the Telephone Consumer Protection Act by making unauthorized text calls to her and other members of the class by using an automatic telephone dialing system.

Twitter allegedly spammed Nunes and class members' cell phones with unwanted bulk automated text messages in an effort to generate advertising revenue, according to the suit.

"Twitter has caused consumers actual harm, including the aggravation and privacy invasion that accompanies receiving unsolicited text messages," the complaint states. "Moreover, consumers are damaged by having to pay cellular telephone service providers for the receipt of Twitter’s unsolicited text messages."

Nunes is seeking class certification, at least $500 in damages for each alleged TCPA violation, statutory damages and post-judgment interest. She is represented by Jeffrey F. Keller, Carey G. Been and Sarah R. Holloway of Keller Grover LLP; John G. Jacobs and Bryan G. Kolton of Jacobs Kolton; and David Schachman of the Law Offices of Davis Schachman.

The case has been assigned to District Judge Joseph C. Spero.

U.S. District Court for the Northern District of California case number: 3:14-cv-02843

From Legal Newsline: Kyla Asbury can be reached at

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