TCPA vs. Facebook SMS birthday alerts: who wins this battle?
If you are a Facebook user – just like roughly one-third of the planet – then you have probably noticed that Facebook sends birthday alerts via text messages. If you google the words “Facebook birthday alert texts” you will get a ton of results from websites where people asked how to disable or turn them off. Annoyed by this or not, this issue has risen a lot of questions recently – ranging from whether it is illegal or not, going as far as it being unconstitutional to prohibit Facebook from sending such SMS alerts.
So what happened, actually?
Facebook birthday alert texts: the story of a class action suit
According to Equities, plaintiff Colin R. Brickman from San Francisco filed a class action suit against Facebook claiming that their SMS birthday alerts violate the Telephone Consumer Protection Act (hereinafter referred to as: “TCPA”), calling them unsolicited and automated. He did that on behalf of all Facebook users, so this suit can actually cost Facebook billions of dollars given that violating TCPA per only one unsolicited call (in this case: text message) can be charged at least $500. You do the math.
But this story has a past. Just a year ago, Duguid vs. Facebook Inc. 2016 case was dismissed on the grounds that such text messages were not sent randomly, which did not violate TCPA. However, in this case, Mr. Brickman may actually have a chance of winning in years to come because his team of lawyers are trying to prove that the messages have been sent by an automated dialing system, thus breaking TCPA rules. What Facebook claims, on the other hand, is that Brickman willfully registered on Facebook and shared his phone number publicly, which involved human interaction. Let’s wait and see what happens.
What is TCPA?
The Telephone Consumer Protection Act of 1991 is an act amending the Communications Act of 1934, which regulates perverse disturbances of US citizen’s free time by robotic prerecorded voice messages (robocalls). However a great solution at its core, the problem with TCPA is that it was passed on 26 years ago and during that time, the technology has changed significantly, to the ends unimaginable, leaving room for various kinds of misuse.
In fact, as soon as it was passed, TCPA was challenged by the question of it being constitutional or not; however, all claims were discharged because of vague definitions which seemingly do not break the First Amendment.
The most recent update is that in August 2016 the Federal Communications Commission (FCC) gathered a group called Robocall Strike Force whose goal is to end robocalls and robotexts for good.
What we all can learn from this case is that TCPA is a very serious act, and businesses which want to include text messaging into their customer service need to abide by all its rules, including prior written consent and data privacy. Since prevention is the best cure,
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