ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Re: ECF No. 36
Before the Court is Defendant Face-book, Inc.’s Motion to Dismiss Plaintiffs First Amended Complaint under Federal Rule of Civil Procédure 12(b)(6). ECF No. 36. Plaintiff Christine Holt has filed an opposition. ECF No. 39. The Court will grant the motion in part and deny it in part.
I. BACKGROUND
For the purpose of deciding this motion, the Court accepts as true the following allegations from Plaintiffs First Amended Complaint (“FAC”), ECF No. 29. See Navarro v. Block,
Defendant Facebook, Inc. operates an online social network of more than 1.5 billion users. FAC ¶¶ 1, 12. Access to the social network is free, and Facebook relies almost exclusively on advertising to generate revenue. Id. ¶ 2. In order to increase the effectiveness of its advertisements, Fa-cebook collects an array of personal information from its users, including their physical location, browsing histories, and telephone numbers. Id. ¶ 13. To promote user interaction with the platform, Face-book sometimes sends its users automated text messages encouraging them to post status updates. Id. ¶ 37-38. One of the most common text messages states: “What are you up to? Reply with a status update to post to Facebook....” Id ¶ 34. Another states: ‘Your friends have posted [a certain number of] updates this week. Reply to post your own status on Face-book....” Id. ¶ 35.
Plaintiff Christine Holt does not use Fa-cebook. Id. ¶ 46. She did not provide her cellphone number to Facebook and did not authorize Facebook to contact her. Id. ¶ 47. Yet in March and April 2016, Holt received multiple text messages from unfamiliar numbers, asking her to post status updates to Facebook. Id ¶44. Later she learned that the numbers were SMS short codes owned or operated by Facebook. Id ¶ 43. She alleges that Facebook sent mes
On April 26, 2016, Holt filed her complaint against Facebook, alleging violations of the Telephone Consumer Protection Act (“TCPA”), and California’s Unfair Competition Law (“UCL”). ECF No. 1. She seeks to represent the following two classes:
Class 1 (the “No Consent” Class): All persons in the United States who: (1) received a text message call initiated by Defendant: (2) at his or her cellular telephone number: and (3) for which Defendant did not have any current record of prior express consent from him or her to place such text message calls at the time the text message calls were placed.
Class 2 (the “Stop Text” Class): All persons in the United States who: (1) received a text message call initiated by Defendant: (2) at his or her cellular telephone number: (3) after making an express request to Facebook for the text messages to cease, other than a final one-time confirmation text message confirming the recipient’s desire to not receive such messages.
Id. ¶ 51 (emphasis in original).
Facebook now moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). ECF No. 36. Holt has filed an opposition to the motion. ECF No. 39. The Court has jurisdiction over the TCPA claim of this action under 28 U.S.C. § 1331 and over the UCL claim under 28 U.S.C. § 1367.
II. LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ, P. 8(a)(2). While a complaint need not contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
III. ANALYSIS
Facebook argues that Holt’s TCPA claim should be dismissed for two reasons.
A. TCPA
1. Elements of a TCPA Claim
To state a claim for a violation of the TCPA, a plaintiff must allege that “(1) the defendant called a cellular telephone number: (2) using an automatic telephone dialing system: (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC,
.Further, the Court acknowledges that it “is bound by the FCC’s interpretations of the TCPA, unless those interpretations are invalidated by a court of appeals.” Reardon v. Uber Techs., Inc.,
2. Holt Plausibly Alleges an ATDS
Holt alleges that Facebook sent the text messages “using equipment that stored cellular telephone numbers in a database and dialed them without any human intervention and/or that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers, en masse.” ECF No. 39 at 12 (quoting FAC ¶ 60). She alleges various, details
Facebook’s first argument is that “conclusory allegations that Facebook used an ATDS ... are not entitled to any weight.” ECF No. 36 at 17. Although Holt’s conclusory allegations regarding the capacity of Facebook’s equipment, FAC ¶ 60, are “not, without more, sufficient to support a claim for relief under the TCPA,” Duguid v. Facebook, Inc., No. 15-cv-00985-JST,
a. Content of the Message
Where the content of the messages suggests, that the defendant directly targeted a particular individual, that content weighs against an inference that the defendant used an ATDS. See Duguid,
Here, the parties agree that the messages contain some generic elements, such as encouraging the intended recipient to post status updates on Facebook. See ECF No. 36 at 17-18: ECF No. 39 at 14. Face-book says, however, the messages “are specific to activity relating to the account associated with Plaintiffs phone number,” and target “the person whose Facebook account is associated with Plaintiffs phone number.” ECF No. 36 at 17. Holt, in response, says that the content of the messages was “generic and boilerplate” and “formulaic.” ECF No. 39 at 13. She says the messages were not “specific” because they “in no way identified the recipient,” “weren’t otherwise tailored for any one individual,” and “could have been sent to every phone number associated with an account holder that had at least seven friends.” Id. at 14.
Holt has the better argument. First, certain of the alleged messages are complete
The second alleged message—“Your friends have posted [a certain number of] updates this week. Reply to post your own status on Facebook.... ”—presents a closer question. Compl. ¶ 35. Facebook is correct that one implication of this message’s content is that Facebook tailored the message to the account holder associated with Holt’s phone number by filling in the number of that user’s friends who had recently posted updates. But it is equally or more likely that the account merely crossed a threshold, set by Facebook’s software, in which a user’s Facebook friends posted a certain number of updates, triggering the sending of a text. To call this chain of events “human intervention” stretches the meaning of the phrase too far. And the universe of potential recipients expands further still if Facebook’s software populates the “number of updates” field variably based on the number updates posted to each user’s individual account.
The facts here are distinguishable from other cases where courts have found the content of a message indicative of human intervention. In Duguid, for example, the plaintiff received messages from Facebook stating “[y]our Facebook account was accessed from [internet browser] at [time]. Log in for more info.”
Likewise, in Flores v. Adir Int’l, LLC, a debt collector messaged the plaintiff several times, asking him “to contact Defendant and providing a reference number.” No. CV 1500076,
Finally, in Weisberg v. Stripe, Inc., the plaintiff received the following text from Stripe, a mobile payment processing company: “Thanks for saving your payment info! This number will be used to verify your identity at Registration and other sites using Stripe Checkout.” No. 16-CV-00584-JST,
Earlier this year, another court in this district found that Facebook plausibly used an ATDS when sending a similar type of text message to its users as the one Holt received here. Brickman v. Facebook, Inc., No. 16-CV-00751-TEH,
“Every ATDS requires some initial act of human agency—be it turning on the machine or pressing ‘Go.’ It does not follow, however, that every subsequent call the machine dials—or message it sends—is a product of that human intervention.” Johnson v. Yahoo!, Inc., No. 14 CV 2028,
b. Context in Which the Message Was Received
Where a plaintiff receives a text message in the context of having “no reason to be in contact with the defendant,” courts may draw support for the inference that an ATDS was used. See Drew v. Lexington Consumer Advocacy, LLC, No.
Here, the context of the messages differs based on whether it is viewed from the perspective of Holt, the recipient, or Facebook, the sender. Holt had no reason to be in contact with Facebook. See FAC ¶¶ 46-47. That context .implies an ATDS, See Drew
The Court finds that Plaintiffs perspective is the relevant' one. For one thing, at the motion to dismiss stage the Court is required to construe all inferences in the Plaintiffs favor. Maya v. Centex Corp.,
. In those rare cases where a court has found ho ATDS despite the absence of a pre-existing relationship between the defendant and plaintiff, other contextual facts weighed in favor of a finding of human intervention. For example, in Glauser v. GroupMe, Inc., the plaintiffs friend added the plaintiffs phone number to an-online group text messaging service, and he subsequently received a message from that service inviting him to join. No. 11-cv-2584-PJH,
On balance, the context of the messages is not suggestive of human intervention that would indicate the presence of an ATDS.
c. Existence of Similar Messages
Where a plaintiff alleges that other people have also received similar unsolicited text messages, courts may draw support for the inference that an ATDS was used. Cf. Brown v. Collections Bureau of America, Ltd.
The parties argue past each other on this issue. Facebook argues that the existence of similar messages. to the same person “underscores- that these were not
d. Additional Relevant Allegations
Several additional factors weigh in favor of a finding that ah ATDS was used. First, where a plaintiff alleges that the offending messages were sent via an SMS short code registered to the defendant, courts may draw support for the inference that an ATDS was used. See Harnish v. Frankly Co., No. 5:14-CV-02321-EJD,
Second, unlike in other cases, there is no allegation here that any actual Facebook employee was involved in sending the messages Holt received. That sets this case apart from cases like Luna v. Shac, where the evidence showed that the plaintiff received a text message only after the defendant’s employee “inputted telephone numbers into CallFire’s web-based platform either by manually typing phone numbers into the website, or by uploading or cutting and pasting an existing list of phone numbers into the website.”
Conclusion: Holt Plausibly Alleged Use of an ATDS
All three Gragg factors imply the existence of an' ATDS. Gragg,
3. Constitutionality of the TCPA
Alternatively, Facebook argues that the TCPA is unconstitutional because it violates the First Amendment both on its face and as applied to the messages sent here. Although the Ninth Circuit has rejected a First Amendment challenge to the automated call provision of the TCPA, that case did not specifically address the constitutionality of the TCPA’s exceptions. Gomez v. Campbell-Ewald Co.,
Recently, however, the Brickman court rejected a nearly identical First Amend
a. Facial Challenge
Facebook first makes a facial challenge to the TCPA.
The district court in Brickman concluded, and this Court agrees, that the TCPA is a content-based law subject to strict scrutiny under Reed. In Brickman, as here, Facebook argued that three exceptions to the TCPA are content-based. This Court agrees that at least two of the 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.” Brickman,
The Court agrees with Brickman that the TCPA survives strict scrutiny because it “furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed,
The next question is whether the TCPA is narrowly tailored. Facebook argues that the TCPA fails this test because 1) it is underinclusive, 2) it is overinclusive, and 3) “there are numerous less restrictive alternatives for protecting people from ‘unwanted and intrusive’ telemarketing calls.” ECF No. 36 at 27-28. Again, the Court agrees with Brickman and rejects each of these arguments.
Facebook claims that the “TCPA’s expansive exceptions render it ‘hopelessly underinclusive,” because calls or texts that would be allowed under the exceptions are just as intrusive to privacy as other calls. ECF No. 36 at 27. As an initial matter, although “underinclusivity raises a red flag, the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” Williams-Yulee v. Florida Bar, — U.S. -,
Next, Facebook argues that the TCPA is unconstitutionally "overinclusive because it sweeps far beyond the concerns that motivated its passage.” ECF No. 36 at 27. Specifically, Facebook complains that “Plaintiff seeks to apply the TCPA not to telemarketing calls made as part of an en masse blast to randomly or sequentially generated numbers, but to targeted status update notifications.” Id. at 28. As an initial matter, the Court already concluded above, based on the allegations of Plaintiffs complaint, that Facebook’s messages are not- as targeted as Facebook claims. Further, “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.” Brickman,
Finally, Facebook argues that “there are numerous less restrictive alternatives for protecting people” from unwanted calls and texts, such as “time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists.” ECF No. 36 at 28. These alternatives would not, however, “be at least as effective in achieving the legitimate purpose that statute was enacted to serve.” Reno v. Am. Civil Liberties Union,
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 individual’s privacy, it would also designate a time for intrusive phone calls. Mandatory disclosure of a caller’s identity and disconnection requirements would also not be as effective in achieving residential privacy because these would not prevent the privacy intrusion from the phone call in the first place. Do-not-call lists would also not be a plausible less restrictive alternative because placing the burden on consumers to opt-Out of intrusive calls, rather than requiring consumers to opt-in, would obviously not be as effective in achieving residential privacy.
Brickman,
In sum, the Court concludes that the TCPA “furthers a compelling interest and is narrowly tailoréd to achieve that interest.” Reed,
b. As-Applied Challenge
Facebook claims that the TCPA “violates the First Amendment on its face and as applied to status update messages.” ECF No. 36 at 23. While “a facial challenge is a challenge to an entire legislative enactment or provision,” an as-applied challenge is a challenge to “the application of the statute to a specific factual circumstance.” Hoye v. City of Oakland,
B. UCL Claim
Facebook argues that Holt lacks standing to bring a claim under California’s Unfair Competition Law because she has failed “to state any facts suggesting that these messages caused any nontrivial economic harm.” ECF No. 36 at 30 (emphasis in original). Although a violation of the TCPA by itself is enough to create standing under federal law, Van Patten v. Vertical Fitness Grp., LLC,
In Van Patten, the Ninth Circuit found that plaintiffs receipt of an unwanted text was sufficient to confer Article III standing, but not enough to create standing under the UCL. The only economic injury plaintiff alleged was that he was required to pay for receiving defendant’s text messages, but the evidence showed that his cell phone plan allowed unlimited messaging. Here, Plaintiff alleges that Facebook’s text messages diminished her and the proposed class members’ property interests by “consuming battery life and diminishing their use, enjoyment; and utility 'of their cellular telephones and cellular telephone plans.” FAC ¶¶ 75, 78.
In analyzing this issue, district courts within this circuit have distinguished between conduct 'that draws upon the user’s cell phone battery frequently or systemically—and which is therefore more likely to reduce battery life—and infrequent or episodic cell phone use that is likely to result only in a de minimis effect on the battery. The former is enough to allege injury under the UCL: the latter is not. Compare In re Google, Inc. Privacy Policy Litig., No. C-12-01382-PSG,
It is impossible to tell from Plaintiffs conclusory allegations here into which of these two categories she falls. She states that Facebook’s texts “consumed] battery life and diminish[ed] [class members’] use, enjoyment, and utility of their cellular telephones and cellular telephone plans,” FAC ¶¶ 75, 78, but does not quantify the extent of the diminishment other than to say that she received “multiple text messages.” Id. at ¶ 44. These allegations are not enough to plausibly allege that Plaintiff suffered the economic injury required for UCL standing. Accordingly, the Court will grant Facebook’s motion as to Plaintiffs UCL claim with leave to amend.
CONCLUSION
The Court denies Facebook’s motion to dismiss Plaintiffs TCPA claim and grants the motion as to Plaintiffs UCL claim with leave to amend. Any amended pleading is due within 14 days of this order.
IT IS SO ORDERED.
Notes
. The problem of recycled cellphone numbers has spurred a number of Telephone Consumer Protection Act lawsuits in this district. See, e.g., Nunes v. Twitter, Inc.,
. In other words, for users whose accounts had received six friend updates, sending the same message that Holt received, but saying "six updates” instead of seven, and so on.
. To evaluate this challenge, the Court need not determine whether Facebook’s messages constitute commercial or non-commercial speech. What matters is that the TCPA, on its face, “regulates all automated telemarketing calls without regard to whether they are commercial or noncommercial.” Moser v. F.C.C.,
. Brickman also explains that even assuming the debt exception, newly added in 2015, were invalid, "it would not deem the entire TCPA to be unconstitutional because the ex-' ception would be severable from the remainder of the statute.” Id. (citing INS v. Chadha,
. In light of this conclusion, the Court need not reach Facebook’s argument that Holt's "unfair” UCL claim fails because she has not alleged "significant harm that outweighs the utility of Facebook’s notifications,” ECF No. 36 at 30, or that Holt’s "unlawful” UCL claim fails "because it is based on her failed TCPA claims.” ECF No. 36 at 31. With regard to the second argument, however, the Court notes Holt’s TCPA claim survives Facebook’s motion to dismiss.