ORDER DENYING FACEBOOK’S MOTION TO DISMISS
On August 9, 2016, Facebook filed a motion to dismiss Brickman’s First Amended Complaint (“FAC”) under Fed. R. Civ. P. 12(b)(6). ECF No. 50. Pursuant to Fed. R. Civ. P. 5.1, Facebook also filed a Notice of Constitutional Question to the Attorney General of the United States. ECF No. 51. And pursuant to Fed. R. Civ. P. 5.1(c), the United States intervened in the case for the limited purpose of defending the constitutionality of the TCPA. ECF No. 62. Brickman and the United States timely opposed Facebook’s motion to dismiss, ECF Nos. 55, 63; and Face-book timely replied. ECF No. 64. On September 11, 2016, the Court requested supplemental briefing from both Brickman and Facebook addressing whether the TCPA and its exceptions would pass strict scrutiny. See ECF No. 68. Both parties submitted supplemental briefing. ECF Nos. 71-72. A hearing was held on Face-book’s motion on January 23, 2017. After carefully considering the parties’ written and oral arguments, the Court DENIES Facebook’s motion for the reasons set forth below.
I. BACKGROUND
The following factual allegations are taken from Plaintiff Brickman’s First Amended Complaint (“FAC”), unless otherwise stated, and are therefore accepted as true for the purposes of this motion. See Bell Atlantic Corp. v. Twombly,
Defendant Facebook, Inc. (“Facebook”) owns and operates the online social networking service, www.facebook.com. ECF No. 43. (“FAC”) ¶ 5. There are more than 156 million Facebook users in the United States, and more than 2 billion worldwide. Id. While Facebook does not own factories, physical product inventory, or saleable goods, it generates revenue from the activities of Facebook users. Id. ¶ 19. In fact, in its investment publications, Facebook defines each time a user engages on the Facebook platform as a “revenue-generating activity.” Id. ¶ 20. In an effort to increase user traffic, which in turn drives Facebook’s advertising revenue, Facebook
Facebook employed computer software to send Birthday Announcement Texts to users. Id. ¶ 67. Facebook’s computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the user’s Facebook friends who will receive the Birthday Text Announcement Texts for a particular user’s birthday; identifies the phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user’s Facebook friends, creates the Birthday Announcement Text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then sends the text messages from that queue. Id. ¶¶ 66-73.
On or about December 15, 2015, Face-book, through its short code SMS number 32665033, texted Brickman’s cell phone number an unsolicited Birthday Announcement Text stating “Today is Jim Stewart’s birthday. Reply to post a wish on his Time-fine or reply with 1 to post ‘Happy Birthday!’ ”. Id. ¶ 84. Although Brickman supplied Facebook his cell phone number, which is associated to his Facebook page, Brickman indicated in the Notification Settings of his Facebook account, prior to receiving the text message, that he did not want to receive any text messages from Facebook, and also did not activate text messaging for his cell phone. ¶¶ 2, 36, 79-82, 85. On February 2, 2016, Brickman filed a putative class action suit against Facebook, alleging that Facebook violates the Telephone Consumer Protection Act (“TCPA”) by sending unauthorized text messages. ECF No. 1. He seeks to represent the following class: “All individuals who received one or more Birthday Announcement Texts from Defendant to a cell phone through the use of an automated telephone dialing system at any time without their consent.” FAC ¶ 97.
II. LEGAL STANDARD
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(6) when a plaintiffs allegations fail to “state a claim upon which relief can be granted.” Fed R. Civ. P. 12(b)(6). Specifically, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly,
In ruling on a motion to dismiss, a court must “accept all material allegations of fact as true and construe the complaint in a fight most favorable to the non-moving party.” Vasquez v. L.A. Cty.,
III. DISCUSSION
1. Brickman has Sufficiently Alleged a Violation of the TCPA.
A valid TCPA claim requires plaintiff to allege (1) Defendant called a
Additionally, pursuant to its authority to “prescribe regulations to implement the requirements” of the Act’s prohibitions, 47 U.S.C. § 227(b)(2), the Federal Communications Commission (“FCC”) has issued a number of declaratory rulings on whether particular equipment qualifies as an ATDS. For example, the FCC has stated the basic functions of an ATDS are to “dial numbers without human intervention” and to “dial thousands of numbers in a short period of time,” In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Red. 7961, 7975 (2015) (“2015 FCC Order”), and has also clarified that the ATDS definition “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or .sequentially generated or come from calling lists.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 15391, 15392 n. 5 (2012) (emphasis in original) (“2012 FCC Order”). Moreover, the FCC has clarified that “[h]ow the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.” 2015 FCC Order, at 7975. “This [C]ourt is bound by the FCC’s interpretations of the TCPA, unless those interpretations are invalidated by a court of appeals”. Reardon v. Uber Technologies, Inc.,
Here, Brickman alleges that Facebook employs computer software to send “Birthday Announcement Texts” without human intervention to users. FAC ¶ 67. More specifically, Brickman alleges Facebook’s computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the users’ Facebook friends who will receive the Birthday Text Announcement Texts for a particular user’s birthday; identifies the cell phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user’s Facebook friends, creates the Birthday Announcement Text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then causes the text messages .to be sent from that queue. Id. ¶¶ 66-73. Brickman
In contrast, Facebook contends Brick-man has not sufficiently alleged a TCPA claim because the content of the birthday message and the context of the alleged birthday message, along with the absence of other messages, supports a finding that the text was the result of direct targeting following human intervention. ECF No. 50 (“Mot.”) at 8:7-10. In support of this, Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST,
Facebook argues that Duguid warrants the same outcome here. First, Facebook argues the content of the message shows the text message was specifically targeted to Brickman because it identified a specific individual, with a specific connection to plaintiff, relating to a specific event on a specific date. Mot. at 9:23-27. And while Brickman alleges the use of a fill-in-the-blank template, Facebook argues such a template is strong evidence of the sort of specific targeting inconsistent with the use an ATDS. Id. at 9:27-10:3. Second, in regard to the context of the message, Face-book argues the message does not suggest a generic marketing message that was sent en masse with an ATDS. Mot. at 10:17-18. Again, this is because Facebook’s message was geared to a particular plaintiff about a particular event and because it was not a telemarketing advertisement. Mot. at 18-24. Lastly, Facebook argues that because Brickman received the birthday text only once, the message is fully consistent with direct targeting and cuts against a finding that Facebook used an ATDS. Mot. at 2-5.
While the call is certainly a close one, viewing Briekman’s allegations in the light most favorable to him, this Court finds he has alleged enough to support a TCPA claim against Facebook. First, in contrast to the plaintiff in Duguid, here, Brickman has alleged more than a conelu-sory allegation that Facebook used an ATDS to send out text messages—he has alleged exactly how Facebook’s software determines who to text, how it gathers the contact information needed to send out texts, how it creates text messages, and how it sends them out, all without human intervention. Such equipment falls within the FCC’s definition of an ATDS, as the
Facebook also attempts to strike down Brickman’s TCPA claim by arguing it was triggered by human intervention. Mot. at 12-14. Facebook argues the Birthday Announcement Text was triggered by human intervention because the following steps were taken: Brickman signed up for Face-book; linked his cell phone number to his profile; befriended Mr. Stewart on Face-book, who himself entered his birth date; and then decided to share that date with his Facebook friends. Mot. at 13:18-25. As mentioned above, whether human intervention exists is a case-by-case determination that requires the Court to analyze “how the equipment functions and depends on human intervention.” 2015 FCC Order, at 7975. In other words, the FCC requires the Court to determine to what extent human intervention is the impetus for the transmission of the challenged message. Sherman v. Yahoo! Inc.,
2. The Court Need Not Address Whether Brickman Granted Face-book Consent at the Motion to Dismiss Stage
While Facebook suggests that Brickman provided prior express consent to receive the text message from it, Brickman has continuously alleged that at all relevant times he indicated in the Notification Settings of his Facebook account that he did not consent to receive any text messages from Facebook, including the Birthday Announcement Texts. FAC ¶¶ 2, 36, 79-82, 85. For purposes of this motion, the Court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez,
3. Constitutionality of the TCPA under the First Amendment
Because the Court finds that Brickman’s allegations are sufficient to state a claim under the TCPA, Facebook challenges the constitutionality of the TCPA under the First Amendment both as-applied and on its face. Mot. at 17. Because invalidating the TCPA would release Facebook from potential liability and therefore redress its injuries, Facebook has standing to challenge the constitutionality of the TCPA. McCormack v. Herzog,
a. Facebook’s Facial Challenge
Facebook argues the recent Supreme Court decision in Reed v. Gilbert, — U.S. -,
In analyzing the constitutionality of the Sign Code, the Court explained that courts must first determine whether the law is content neutral on its face. Id. at 2228. The Court further explained that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”
The town claimed that the Sign Code furthered the compelling interests of preserving the Town’s aesthetic appeal and promoting traffic safety. Id. Yet, even while assuming these were compelling governmental interests, the Court found the Sign Code failed strict scrutiny because it was “hopelessly underinclusive.” Id. Specifically, the Court found that temporary direction signs were “no greater an eyesore” than ideological or political ones; that the code allowed “unlimited proliferation” of large ideological signs while strictly limiting the number, size, and duration of smaller ones; and that the town offered no reason to believe that directional signs posed a greater threat to traffic safety than ideological or political signs. Id. at 2231-32. In light of this underclusiveness, the Court struck the Sign Code down because “a law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damages to that supposedly vital interest prohibited.” Id. at 2232 (quoting Republican Party of Minn. v. White,
Applying Reed to the TCPA, Face-book argues the TCPA is content-based because “it’s riddled with exceptions that ‘draw[ ] distinctions based on the message a speaker conveys.” Mot. at 19:1-3. In particular, Facebook points to three provisions in the TCPA: (1) an exemption applying to any “call made for emergency purposes” (47 U.S.C. § 227(b)(1)(A)); (2) an exemption applying to any call “made solely to collect a debt owed to or guaranteed by the United States (Id. at § 227(b)(1)(A)(iii)); and (3) a section empowering the FCC to exempt calls made with an ATDS to a cell phone number if the calls “are not charged to the called party” and are “in the interest of the privacy rights [the TCPA] is intended to protect” (Id. at § 227(b)(2)(C)). Mot. at 19-20.
This Court agrees that the first two exceptions are content-based and therefore subject to strict scrutiny. Certainly, each of these exceptions would require a court to examine the content of the message that is conveyed in order to determine if a violation of the TCPA has occurred. Brick-man’s and the government’s arguments to the contrary are not persuasive. First, Brickman argues the TCPA’s emergency exemption is content-neutral because whether a call or text falls within the exception depends on the situation rather than the content of the message. ECF No. 55 (“Opp’n”), at 11:20-26. But such an interpretation would lead to puzzling re-' suits as it would mean that any message sent during a natural disaster or power outage would fall within the emergency exception, regardless of whether the message conveyed safety information, an advertisement, or a joke. This also runs counter to the statutory definition which defines emergency purposes as “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). Whether a call is “necessary” in a situation affecting the health and safety of consumers would depend on
Second, Brickman argues the debt-collection exception is also content-neutral because the “exception is based on the called party’s debtor-creditor relationship with the government, not on the content of the message.” Opp’n at 12:1-4. This too is unconvincing. The plain language of the exception makes no reference whatsoever to the relationship of the parties. Rather the exception applies to all calls made to collect debt owed or guaranteed by the United States. Briekman’s and the government’s cited authorities in support of this “relationship” argument are inapposite. In both Van Bergen v. Minnesota,
The third exemption, however, is not a content-based restriction. During oral arguments, Facebook clarified it is not challenging any exceptions made under the FCC’s authority, nor is it arguing that the FCC has taken actions that are not consistent with the statute. Instead, Facebook is challenging the FCC’s authority to create exemptions to the TCPA because, Face-book argues, such authority “plainly calls for the scrutiny of the content of the message to determine whether it is consistent with the government’s views on privacy.” ECF No. 64 (“Reply”) at 15:17-18. This argument is unavailing. Although the statute empowers the FCC to create exceptions that promote the interest of privacy rights, there are content-neutral ways for the FCC to accomplish this. Indeed, like the statutes at issue in Van Bergen,
In sum, this Court finds the emergency and government-debt exceptions to the TCPA to be content-based. Accordingly, Reed requires that the TCPA and the first two exemptions be subject to strict scrutiny. See Reed,
i. The TCPA Withstands Strict Scrutiny
In order to survive strict scrutiny, “the government [must] prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed,
1. The TCPA Serves a Compelling Interest
The government devoted several pages supporting its claim that there is a compelling government interest in protecting residential privacy. ECF No. 63 (“U.S. Opp’n”) at 17-19. Specifically, the government provided several Congressional records stating, inter alia, that the TCPA was enacted “to protect the privacy interests of residential telephone subscribers;” that Congress determined automated telephone calls to be “an invasion to privacy, an impediment to interstate commerce, and a disruption to essential public safety services;” and that Congress determined that
The Supreme Court has frequently emphasized that “[t]he State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown,
One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, [citations], the home is different.... [A] special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.
Frisby,
2. The TCPA is Narrowly Tailored
Despite assuming the TCPA serves a compelling interest, Facebook argues the TCPA still cannot survive strict scrutiny because the TCPA is both underinclusive and overinclusive, and because there are less restrictive means of achieving the compelling interest. ECF No. 72 (“FB Supp.”) at 1:7-12. The Court addresses each point in turn.
a. The TCPA is Not Underinclusive
The Supreme Court has recognized that while “underinclusivity raises a red flag, the First Amendment imposes no freestanding ‘underinclusiveness limitation.’ ” Williams-Yulee,
Facebook argues that TCPA’s speech restrictions are “hopelessly underinclu-sive” under Reed because texts about emergencies or government debt are no less intrusive to privacy than other types
Second, unlike the Sign Code in Reed which allowed “unlimited proliferation” of one type of sign while strictly limiting a different type of sign, here, neither exception allows for unlimited proliferation of any type of call. Emergency calls by their statutory definition would only be allowed under limited circumstances, for a limited time, and for limited purposes.
The government debt exception would likewise be limited by the fact that such calls would only be made to those who owe a debt to the federal government. On a related note, the Supreme Court has recognized that the “United States and its agencies ... are not subject to the TCPA’s prohibitions because no statute lifts their immunity.” Campbell-Ewald Co. v. Gomez, — U.S. -,
b. The TCPA is Not Overinclusive
Facebook also argues the TCPA is over-inclusive because “in purporting to target the ill of unwanted telemarketing it sweeps in speech that facilitates social connections.” FB Supp. at 3:16-18. In support of this argument, Facebook cites to congressional findings in support of the TCPA where Congress repeatedly identified telemarketing as a threat to privacy. See Telephone Consumer Protection Act § 2. But the TCPA is quite limited in what it prohibits. It only restricts calls made using an ATDS without the prior express consent of the recipient. See 47 U.S.C. § 227(b)(1)(a). In other words, the TCPA does not restrict individuals from receiving any content they want to receive—speech that would otherwise be prohibited by the TCPA is immediately removed from the purview of the statute once express consent is provided. If individuals want to receive speech from Facebook that facilitates social connections, they are not prohibited from doing so. Accordingly, this Court finds the TCPA is not overinclusive.
3. Facebook’s Suggested Alternatives Are Not Effective
Lastly, Facebook argues that the TCPA is not narrowly tailored because there are less restrictive alternatives that can regulate robocalls. FB Supp. at 4:15-22. The Supreme Court has explained that “[l]ess restrictive alternatives must be at least as effective in achieving the legitimate purpose that statute was enacted to serve.” Reno v. Am. Civil Liberties Union,
Here, in contrast to the defendants in Cahaly and Gresham, the Government is contesting the validity of Facebook’s proposed alternatives. And this Court agrees that Facebook’s proposals would not “be at least as effective” as the TCPA in achieving residential privacy. Time-of-day limitations would not achieve the same privacy objectives because even though such a restriction may designate the span of time in which callers can intrude on an individuars privacy, it would also designate a time for intrusive phone calls. Mandatory disclo
Facebook also briefly suggested in its supplemental brief and during oral arguments that the TCPA could be more narrowly tailored . by pointing to §§ 227(b)(1)(B) and § 227(b)(1)(C) which Facebook claims exempt noncommercial calls on residential and fax lines from TCPA restrictions. FB Supp. at 5:5-7. But under Facebook’s own analysis, such restrictions would also be content-based and subject to strict scrutiny.
In sum, the Court finds Facebook has presented no plausible less restrictive alternative that would at least be as effective in protecting privacy as the TCPA.
b. Facebook’s As-Applied Challenge Fails
Because Facebook’s facial challenge fails, so too does its as-applied challenge. The Court need not, and does not, undergo this analysis because even assuming Face-book’s text message was not commercial speech, the TCPA withstands strict scrutiny. Accordingly, Facebook’s as-applied challenge fails.
IY. CONCLUSION
For the reasons articulated above, the Court finds Brickman has sufficiently alleged a violation of the TCPA and that the TCPA is constitutional. Accordingly Face-book’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Notes
. Facebook also cited to several other cases supporting its "content, context, and similar messages" argument, see, e.g., Flores v. Adir Int’l, LLC, No. CV 15-00076-AB,
. As stated above, Facebook has stated it is not contesting any exemptions created under the FCC’s authority to create exemptions under 47 U.S.C. § 227 (b)(2)(C). See supra Section III.3.a.
. Notably, in Reed.,
.The government-debt exception was added to the TCPA in 2015. See Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301, 129 Stat. 584, 588 (2015)