In Brickman v. Facebook, Inc., 2017 WL 386238, at *3–4 (N.D.Cal., 2017), Judge Henderson found that Facebook’s “Happy Birthday” texts survived a motion to dismiss. Judge Henderson also found that the TCPA survived a constitutional challenge as violating free speech.
Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016), where the court examined whether a plaintiff had plausibly alleged a violation of the TCPA. The plaintiff there alleged that although he never provided his cell phone number to Facebook nor did he authorize it to send him messages, he had received text messages from an SMS short code licensed to and operated by Facebook, using the following template: “Your Facebook account was accessed from [internet browser] at [time]. Log in for more info.” Id. at *1. The plaintiff also made a conclusory allegation that the text messages “were made with an ATDS” and that the “ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. In determining whether the plaintiff’s conclusory allegation supported a claim for relief under the TCPA, the court analyzed “the content of the message, the context in which it was received, and the existence of similar messages.” Id. at *5. In doing so, the court dismissed the plaintiff’s TCPA claim because his “allegations suggest[ed] that Facebook’s login notification messages [were] targeted to specific phone numbers and [were] triggered by attempts to log in to Facebook accounts associated with those phone numbers.” Id. 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, Facebook 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 Brickman’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 conclusory 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 alleged equipment would have the “capacity to generate numbers and dial them without human intervention” even if the numbers came from a calling list. See, 2015 FCC Order, at 8077. Second, here, peripheral considerations such as the content of Facebook’s text message, the context of the Facebook’s text message, and the existence of similar messages do not preclude a finding that Facebook employed an ATDS to send out the Birthday Announcement Texts. While Facebook’s Birthday Announcement Texts do suggest direct targeting of Brickman, based on the facts alleged it is plausible that Facebook could have used an ATDS to send out the targeted messages. This is especially true in a situation like this where Brickman alleges Facebook possessed the particular information and technology needed to craft such targeted messages (i.e., cell phone numbers, users’ birthdays, friendship connections, etc.).1 See FAC ¶ 67. 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 Facebook; linked his cell phone number to his profile; befriended Mr. Stewart on Facebook, 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., 150 F. Supp. 3d 1213, 1217 (S.D. Cal. 2015). Considering the allegations put forth in Brickman’s FAC and viewing them in the light most favorable to him, the Court finds that Brickman’s and Mr. Stewart’s actions were not the impetus for Facebook sending the Birthday Announcement Text. This is particularly true where Brickman alleges he gave Facebook his cell phone number but that his account settings gave Facebook “unambiguous notice” that it did not have consent to send him text messages. FAC ¶¶ 2, 78. Also, the FCC has stated equipment may be considered an ATDS regardless of whether the numbers come from a calling list. 2015 FCC Order, at 8077. This FCC interpretation would mean nothing if merely adding phone numbers to a calling list – which would always undoubtedly require some human conduct –was deemed to constitute “human intervention.” This is not a situation like Weisberg, 2016 WL 3971296, or Cours v. Life360, Inc., No. 16-cv-00805-THE, 2016 WL 4039279 (N.D. Cal. July 28, 2016), where automated messages were directly triggered by an individual’s affirmative acts inviting such communications. Simply stated, this Court agrees with other courts which have determined that because a person will always be a but-for cause of any action’s machine, “human intervention” for purposes of the TCPA requires more than but-for causation. Sherman,150 F. Supp. 3d at 1219. Also in Johnson v. Yahoo!, Inc., No. 14 CV 2028, 14 CV 2752, 2014 WL 7005102, at *5 (N.D. Ill. Dec. 11, 2014), the Court refused to find “human intervention” existed where there was some evidence a computer software program could “pull numbers and dial them without a person ordering a specific system message.” Here, Brickman has alleged Facebook’s dialing system can do exactly that.