Thursday, March 12, 2015

According to the Telephone Consumer Protection Act, or TCPA, companies are not allow to send automated text messages to mobile phone users without express written consent. And according to plaintiff Mr. Noah Duguid, the social media behemoth Facebook did just that.

After having filed his claim initially in New York last November, Duguid relocated the suit to the state of California last Tuesday, March 3rd. (The representatives of Facebook had argued that the Southern District of New York was an inappropriate venue for the case.) As the plaintiff prepares to move forward with his class action lawsuit, Facebook must prepare a defense for their supposed actions.

Duguid claims that he was sent several unwarranted SMS text messages from the social media company, starting in January of 2014. He also stated that he has never disclosed his telephone number to the corporation. After receiving the initial text, he opted out of text message notifications multiple times, with assurances from Facebook that he would no longer receive text messages from the company. But the text messages continued, despite his resistance.

Facebook, in recent years, has been ramping up both their privacy policies and their security features. In one security feature in particular, Facebook can contact you via text message to let you know that your account has been accessed from an unknown browser and/or device. This is a useful safety feature for many users; nonetheless Facebook’s announcement of these alerts also championed the idea that they could be easily deactivated by users.

Apparently, this is not the case.

With the influx of unwanted messages coming from Facebook, Duguid filed a TCPA class action lawsuit against Facebook. Consumers who have experienced similar correspondence from Facebook may participate in the suit, but they must follow two criteria: 1) Any individual who has never provided their cellphone number to Facebook but still received SMS notifications via an automatic telephone dialing system (or ATDS), and 2) The individual must have attempted to opt-out of text message alerts with Facebook, and yet still received them after said request.

In terms of damages, Facebook may be liable for statutory damages in the amount of $500 per text message sent. If the court finds that the text messages were sent knowingly or willfully by an associate of the Facebook corporation, that number increases to $1500 per text. While there is no disclosure from the plaintiff’s counsel as to how many texts were sent, the complaint estimates that several thousand texts were sent out in this manner – which could essentially total over $5 million in overall damages.

In the past, companies were allowed more protections when it came to delivering automated text messages. With the FCC ruling of October 16th, 2013, however, businesses are now required to have prior express written consent for any kind of autodialed commercial text messaging. In the coming months, the court will reveal if Facebook violated TCPA regulations.

In the meantime, let Duguid v. Facebook, Inc. be a cautionary tale to all businesses who wish to employ automatic telephone dialing systems for SMS text messages – make sure your company always follows best practices for any of your marketing endeavors.