Twitter Seeks Ninth Circuit Ruling That It Does Not "Make" Calls

After losing a round in a California district court, Twitter has appealed to the Ninth Circuit Court of Appeals from a ruling in a Telephone Consumer Protection Act case leaving the social network on the hook for unwanted text messages.

Beverly Nunes sued the social media microsite in 2014 after she purchased a new cell phone and began receiving texts from Twitter. The prior owner of the phone number had subscribed to receive specific notifications from various tweeters via text and Twitter continued to send them to Nunes after the number was reassigned.

Twitter mounted a two-pronged defense in its motion for summary judgment: first, that it was not the "maker" of the texts under the TCPA, and second, that it was immunized from liability under the Communications Decency Act (CDA). In declaring both of the arguments "wrong," U.S. District Court Judge Vince Chhabria granted summary judgment in favor of Nunes.

The defendant's contention that it does not "make" the tweets at issue is contrary to the language of the statute, the ordinary meaning of the word "make," and the purpose behind the TCPA, the court said. "The statute says it is unlawful 'to make any call' to a cell phone using an 'automatic telephone dialing system' without 'the prior express consent' of the recipient of the call," the court explained. "In the circumstances presented by this case, Twitter is the only conceivable 'maker' of any of these calls."

Twitter is the one alleged to have used an ATDS to send the text messages to the recipient and "is the actual sender of the text," Judge Chhabria wrote. The author of the tweet "cannot possibly" be the maker of the call, because under Twitter's default setting, the author does not control who may sign up to receive his or her tweets and is not involved in the mechanics of actually transmitting any text messages.

The defendant posited that the former owner of the phone number who signed up to receive tweets was the "maker" of the text messages to that number in the future. Twitter argued that by signing up to receive tweets via text message, the former owner "initiated" all text messages sent by the social networking site, relying upon a 1991 ruling from the Federal Communications Commission that used the word "initiate" in certain instances to refer to "making" a call.

"But the FCC's ruling contemplates merely that a person can be deemed to have 'made' or ('initiated') a call if he was heavily involved in the 'placing' of a 'specific' call," the court said. "There is no suggestion that a person can be the 'maker' of the call if he merely signed up to receive any unspecified number of calls in the future, and as previously noted, such an interpretation would be contrary to the plain meaning of the statute."

Judge Chhabria distinguished an FCC ruling on group messaging services, finding that in contrast to that app, where the user invites people to sign up for the service, "the new owner of a recycled number is receiving tweets via text message [but] the former owner of the number is not 'placing' any 'specific' calls to her. He can't be, because he likely doesn't know when (or even if) the person whose tweets he signed up to receive via text message will compose a tweet. Nor does he know, once he relinquishes his number, to whom (if anyone) new text messages will be sent."

Consideration of the goals and purposes of the TCPA only weakened Twitter's argument even more, the court added, particularly in the wake of the FCC's 2015 Declaratory Ruling finding that the caller—and not the wireless recipient of the call—bears the risk that the call was made without the prior express consent required under the statute.

"It may be true, as Twitter argues, that it's presently difficult or impossible for companies to detect when they are sending out texts to people with recycled numbers," the judge wrote. "But as the FCC noted, there are apparently many steps businesses can take to identify reassigned numbers. And if Twitter's proposed interpretation of 'make any call' were to prevail, the owners of recycled numbers who receive unwanted tweets via text message would have no protection under the TCPA. That conclusion, in addition to being contrary to the text of the statute, would be in sharp tension with the FCC's 2015 decision about how to implement the TCPA when recycled numbers are involved, and its discussion of how the statute's purposes should be effectuated."

The court also determined that the CDA does not shield Twitter from potential liability under the TCPA, as the site does not review or edit the content of the tweets or make decisions about whether to send out a tweet.

"Nunes' claim against Twitter under the TCPA does not depend on the content of any tweet, or on any assertion that Twitter is required to sift through content to make sure the content is not bad," Judge Chhabria said. "Just the opposite—if Twitter ends up being liable under the TCPA, it would be liable whether the content of the unwanted tweets is bad or good, harmful or harmless. Either way, the unwanted tweet is a nuisance."

Twitter quickly responded with a motion to certify Judge Chhabria's order for interlocutory appeal to the Ninth Circuit, arguing that the ruling involved a controlling question of law on the proper interpretation of the FCC's 2015 Ruling on a matter about which reasonable jurists could disagree and have disagreed.

"Several courts have already rejected claims against online services similarly situated to Twitter, on the grounds that a service that transmits user-directed messages does not initiate them within the meaning of the FCC order," the company wrote in its motion for certification, citing decisions from courts in California, Illinois, and Florida.

These other courts read the FCC Ruling as making the determination whether an intermediary service makes or initiates the text messages it transmits turning on factors identified by the agency, such as whether the service or its user determined whether, when, and to whom the messages would be sent, and who supplied the content, Twitter told the court. "These courts did not consider the identity of the recipient of a text message relevant to the question of who initiated the text message."

To read the order in Nunes v. Twitter, Inc., click here.

To read Twitter's motion for certification to appeal the order, click here.

Why it matters: The district court took particular issue with Twitter's stance that the ruling would leave the company no choice but to stop sending its text messages. "The implication seemed to be that this result would be unbearable," Judge Chhabria wrote. "[I]t's unclear why the desire to send alerts by text message (rather than email, or push notification through an app) should prevail over the TCPA's goal of protecting people with recycled numbers from receiving unwanted texts sent by companies using autodialers." In its motion for certification, Twitter noted that the issue is already pending before the Ninth Circuit, suggesting that the federal appellate court combine its case with the other "to ensure that the Ninth Circuit considers the meaning of the FCC Order comprehensively, with a broader appreciation of the scope of the precedent." The issue "is vital given the ever-growing number of modern communications technologies, and the explosion of TCPA litigation nationwide," Twitter added.

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