194 F. Supp. 3d 959
N.D. Cal.2016Background
- Plaintiff Beverly Nunes received unwanted text messages containing tweets after inheriting a recycled cell phone number that a prior owner had registered to receive tweets via SMS.
- Nunes, a non-Twitter user, attempted to stop the texts by replying but continued to receive them and brought a proposed class action under the Telephone Consumer Protection Act (TCPA).
- Twitter sends tweets via SMS to users who opt in; Twitter is the sender and converts tweets into text messages for delivery.
- Cross-motions for partial summary judgment address (1) whether Twitter “made” the calls under the TCPA and (2) whether Twitter is immune under Section 230 of the Communications Decency Act (CDA).
- The FCC’s 2015 TCPA Order (addressing recycled numbers and who is the ‘‘called party’’) and the Ninth Circuit’s treatment of text messages as ‘‘calls’’ under TCPA (Satterfield) frame the statutory and regulatory background.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Twitter “made” the calls under the TCPA | Twitter, as the sender using autodialing technology, is the maker of the calls | Twitter contends it did not "make" the calls; the prior subscriber or tweet author should be treated as the initiator/maker | Court held Twitter is the maker of the calls under the TCPA (plain meaning and FCC guidance) |
| Whether a prior subscriber who opted in is the "maker" of future calls after number reassignment | Nunes argues prior consent does not make the former subscriber the maker of later calls to a reassigned number | Twitter argues the former subscriber ‘‘initiated’’ consent and thus is effectively the maker of future calls | Court rejected Twitter’s reliance on that theory; mere prior opt-in is not making/initiating specific future calls |
| Whether FCC interpretation of ‘‘initiate/make’’ (TextMe/YouMail contexts) controls here | Nunes: FCC’s totality-of-circumstances approach does not support Twitter’s position; the factual context differs | Twitter: FCC guidance supports treating non-platform actors as makers when they initiate messages via platforms | Court applied FCC guidance but found the factual differences dispositive; FCC examples (TextMe/YouMail) do not make prior subscriber or tweet author the maker here |
| Whether Section 230(c)(1) immunizes Twitter from TCPA liability | Nunes: TCPA claim targets Twitter’s role in sending texts (conduct), not the content; suit does not treat Twitter as publisher/speaker of third-party content | Twitter: CDA bars suits treating it as publisher or speaker of others’ content (tweets) | Court held Section 230 does not bar the TCPA claim because the suit targets Twitter’s conduct in sending messages, not its role as publisher of tweet content |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (texts qualify as "calls" under the TCPA)
- Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (Section 230 publication/speaker immunity scope)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (publication involves reviewing, editing, deciding to publish or withdraw third-party content)
- Green v. AOL, 318 F.3d 465 (3d Cir. 2003) (Third Circuit treated claims alleging platform failed to address harmful content as implicating publisher liability)
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (courts should look to statutory text and Congress for reforms when technology changes statutory reach)