Class Accuses Twitter of Spamming

     SAN FRANCISCO (CN) - Twitter illegally spams users and nonusers with text-message ads from third parties in an effort to prop up its bottom line, a class action claims in Federal Court.
     Lead plaintiff Beverly Nunes sued Twitter on June 19, claiming Twitter's practice of texting ads to mobile phones violates the Telephone Consumer Protection Act.
     Nunes claims that because Twitter does not generate revenue directly from its users, the company has turned to automated texts to "tweet" ads and make money.
     Twitter makes nearly 90 percent of its revenue from the ads and 70 percent comes from mobile devices, according to the complaint.
     The company processes almost 1 billion SMS (short message service) tweets per month, and bought messaging infrastructure service Cloudhopper in 2010 to connect directly to mobile carrier networks worldwide, Nunes says.
     Unfortunately for Twitter, however, cellular phone customers in the United States must consent to receive SMS text ads. While some of its users have opted in, Twitter also sends texts to numbers that have been recycled by mobile carriers - bombarding non-Twitter users who get the recycled cellphone number with ads, according to the complaint.
     While Twitter has options to clean up its database and respond to opt-out requests, Nunes says that doing so would torpedo the company's efforts to increase its profits.
     "Despite industry guidelines, commercially available resources and the obvious lack of consent associated with recycled numbers, Twitter fails to take the necessary steps to insure that its automated text messages are sent only to consenting recipients, nor does it have incentive to do so. Twitter is paid based on the volume of activity of people using its platform," the complaint states.
     "The more SMS text messages Twitter sends (authorized or not), the more people who may participate in Twitter and engage in its advertisements, generating more money for Twitter. Twitter also benefits from network effects where more activity on Twitter results in the creation and distribution of more content (i.e., Twitter has been one of the most-visited websites on the internet), which attracts more users, platform partners and advertisers, resulting in a cycle of value creation. According to Twitter, Tweets have appeared on over 8 million third-party websites, and in the fourth quarter of 2013 there were approximately 67 billion online impressions of Tweets off of Twitter's properties." (Parentheses in complaint.)
     Twitter transfers the consent of a telephone number's previous owner to the new one, and frequently disregards reply messages to stop or unsubscribe, Nunes says.
     "Twitter knows, or is reckless in not knowing, that its SMS text messages are sent to non-consenting, recycled cellular number subscribers," the class action states. "Indeed, Twitter has received numerous consumer complaints alerting it to this very fact and requesting that the messages stop. Ultimately, Twitter is responsible for verifying cellular telephone number ownership and obtaining consent before sending automated text messages to cellular telephone subscribers. Even with prior cellular subscriber consent, Twitter is liable under the Telephone Consumer Protection Act for sending text messages to cellular numbers reassigned to new subscribers without the new subscriber's consent."
     Nunes also accuses Twitter of ignoring its customers' requests to opt out of the messages by making it next to impossible to unsubscribe.
     "Twitter makes it notoriously difficult for consumers to opt-out or unsubscribe to its SMS text messages," Nunes says in the complaint. "For instance, according to Twitter, the commands 'Stop,' 'Quit,' 'End,' Cancel,' 'Unsubscribe' and "Arret' (when replying to SMS messages) will deactivate your account only if you are an SMS-only user, that is, a user who does not have an online Twitter account but has previously communicated with Twitter via SMS text. If the cellular number is linked to an online Twitter account, the command 'Off' must be used to stop SMS spam. Ultimately, consumers (many of whom are unaware that the messages are from Twitter) must be well-versed in Twitter's SMS commands to effectively communicate a stop request and, even then, the outcome is uncertain." (Parentheses in original.)
     Nunes continues: "Twitter knows, or is reckless in not knowing, that its SMS text messages to these cellular subscribers are unauthorized. Reply message stop requests are, by design, sent to Twitter's short code, 40404, thereby directly informing Twitter (as intended) that any subsequent messages are unauthorized. Again, however, Twitter has little incentive to honor stop requests. With nearly all of its revenue coming from advertising associated with the volume of activity on its system, each stop request is a loss of potential recurring revenue. Ultimately, consumers are forced to bear the costs of receiving these unsolicited and unauthorized text messages." (Parentheses in original.)
     Twitter texted Nunes with ads several times a day - often before 8 a.m. and after 9 p.m. - even after she demanded that it stop, according to the complaint.
     Nunes seeks class certification, damages for each violation of the TCPA, and an injunction to stop Twitter's spamming.
     She is represented by Jeffrey Keller of Keller Grove in San Francisco.