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Twitter Still on Hook for Text Message Spamming

SAN FRANCISCO (CN) - Twitter must defend its text messaging practices in a class action case over spam sent to non-users, a federal judge ruled.

U.S. District Judge Vince Chhabria refused to dismiss a Telephone Consumer Protection Act class action against Twitter alleging that the social network sends mass text messages to non-users without their consent.

Lead plaintiff Beverly Nunes filed her class action against Twitter this past June, claiming that the company sent text messages to individuals who use "recycled" cellphone numbers previously assigned to Twitter users. While those users may have given consent to receive the texts, Nunes claims that should have known that the numbers they were sending the mass text messages to were recycled and no longer used by their members.

Nunes says she received unwanted promotional text messages from Twitter several times per day, according to the complaint. She attempted to alert Twitter that the texts were not authorized by replying to the text messages with the company's provided code to stop the messages, but to no avail.

"Despite her explicit stop requests, plaintiff continues to receive unauthorized text messages from Twitter, as many as four to six messages per day, at all hours of the day and night, including many before the hour of 8 a.m. or after 9 p.m. local time," Nunes says in her complaint.

Twitter moved to dismiss the case, arguing that Nunes can't back up her her TCPA claim that the company uses an automatic dialing system to send the text messages. The social network said that its equipment does not meet the definition of an automatic dialing system since it can't store phone numbers and then dial them using a random number generator without human intervention.

Chhabria disagreed, citing the Federal Communication Commission's definition of an automatic dialing system as "any equipment with the 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', including hardware that, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers."

He continued: "Accordingly, Nunes' primary theory for why Twitter uses an automatic telephone dialing system (namely, that the equipment as alleged falls within the definition adopted by the FCC) is correct, and the court declines to consider at this stage whether the FCC's definition constitutes an unlawful expansion of the statute." [Parentheses in ruling.]

As to Nunes' second theory that Twitter's equipment meets the automatic dialing system requirement because it has the ability to randomly or sequentially generate numbers, Twitter argued that its equipment would have to undergo extensive reconfigurations to meet the Nunes' definition.

But Chhabria said it's too early in the case to buy Twitter's argument on that front.

"It is an evidentiary matter that cannot be resolved at the pleading stage," Chhabria wrote in the 4-page ruling. "Even if Twitter were correct that Nunes' broader definition of an automatic telephone dialing system is not supported by the FCC orders (or that the FCC orders improperly expand the definition), dismissal of the complaint would not be warranted." [Parentheses in ruling.]

As to whether the consent Twitter obtained from the previous owner of Nunes' cellphone number counts as consent to besiege Nunes with spam, Chhabria said that the 7th Circuit has already established in Soppet v. Enhanced Recovery that only the consent of the person currently holding the phone number justifies an automated call - or in this case, text message.

A trial date has not yet been set.

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