SAN FRANCISCO (Legal Newsline) - A federal judge has denied Twitter's motion to dismiss a class action lawsuit that accuses the company of violating the Telephone Consumer Protection Act.

District Judge Vince Chhabria said in the order that Twitter's argument "fails" and denied the motion, according to an order filed Nov. 26 in the U.S. District Court for the Northern District of California.

"As pertinent here, the TCPA makes it unlawful to use an 'automatic telephone dialing system' to 'make any call' without 'the prior express consent of the called party,'" the order states.

Under U.S. Court of Appeals for the Ninth Circuit precedent, a text message is a "call" within the meaning of the TCPA.

The parties first dispute whether the complaint sufficiently alleges that the equipment Twitter uses to send its texts qualifies as an automatic telephone dialing system, according to the order.

"Nunes' primary that Twitter's equipment qualifies because it 'stores' telephone numbers and then 'dials' those numbers without human intervention," the order states. "Twitter responds that it is not enough for the equipment to 'store' the numbers and then 'dial' them without human intervention, because under the statute the equipment must also have the 'capacity' to 'generate' numbers using a 'random' number generator or a 'sequential' number generator."

The equipment at issue in this case, Twitter argues, merely stores and dials numbers from a database, and does not have the capacity to "generate" numbers, either with a "random" or a "sequential" number generator.

The Federal Communications Commission has construed the statute in a manner that appears more consistent with Nunes' theory, the opinion says.

"Although this language is not crystal clear, it appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention," the order states. "This appears to be the way predictive dialers worked, and it is the way Nunes alleges that Twitter's equipment works in this case. At least two district courts have held that the FCC...unlawfully expanded the statute's definition of an automatic telephone dialing system."

Chhabria said in the order that in this case, Twitter has not asked the court to reject the FCC's interpretation of the statute and, instead, in its motion to dismiss Twitter only asserts that the FCC orders are distinguishable.

The FCC's reasoning about predictive dialers appears to apply equally to the complaint's allegations about Twitter's equipment, according to the order.

"The district courts in Marks [v. Crunch San Diego] and Dominguez [v. Yahoo!] reached similar conclusions about the breadth of the language in the FCC's orders, even as they rejected that language as unlawful," the order states. "Accordingly, Nunes' primary theory for why Twitter uses an automatic telephone dialing system is correct, and the court declines to consider at this stage whether the FCC's definition constitutes an unlawful expansion of the statute, particularly where Twitter has not made that argument and where courts are in disagreement about it."

Beverly Nunes filed her class action lawsuit on June 19 in the U.S. District Court for the Northern District of California. Twitter filed its motion to dismiss on Sept. 16.

In November 2013, Nunes obtained a new cell phone number from MetroPCS and almost immediately, she began to receive impersonal, promotional text messages several times per day, she says,

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."

In its motion to dismiss, Twitter called the case "another in a growing line of abusive, putative class action lawsuits brought under the Telephone Consumer Protection Act."

"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," the motion to dismiss stated.

Twitter claimed its texts were not sent using an "automatic telephone dialing system or an artificial or prerecorded voice," according to the motion.

"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."

Chhabria said in the order that the complaint contains a secondary theory about how Twitter's equipment qualifies as an automatic telephone dialing system.

"In paragraph 61, Nunes alleges that even if the statute requires that the equipment have the capacity to 'generate' numbers at random or sequentially,...Twitter's equipment indeed has this capacity," the order states. "Twitter argues that this allegation is wrong and that Twitter's equipment would need to be dramatically reconfigured to meet the narrower definition of an automatic telephone dialing system, but that is not apparent from the allegations in paragraph 61, and it is therefore an evidentiary matter that cannot be resolved at the pleading stage.

"Accordingly, even if Twitter were correct that Nunes' broader definition of an automatic telephone dialing system is not supported by the FCC orders (or that the FCC orders improperly expand the definition), in light of paragraph 61 dismissal of the complaint would not be warranted."

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 in San Francisco; John G. Jacobs and Bryan G. Kolton of Jacobs Kolton in Chicago; and David Schachman of the Law Offices of Davis Schachman in Chicago.

Twitter is represented by David H. Kramer, David J. Strandness and Jarred O. Taylor III of Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif.

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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