More Regarding Twitter and the TCPA

In my previous blog, I highlighted what is, in my opinion, a frivolous lawsuit filed against Twitter for an alleged violation of the Telephone Consumer Protection Act (TCPA).  With this blog, I hope to offer a better explanation of why I consider it to be frivolous.

Let’s quickly review the case, where two men, Drew Moss and Sahar Maleksaeedi, had phone numbers that were registered with Twitter, and they each sent a STOP message to Twitter requesting to be removed from the subscription list.  Twitter removed them from the subscription list as requested, and then sent an acknowledgement SMS confirming that they had been removed.  Moss and Maleksaeedi filed a class action lawsuit against Twitter, alleging that Twitter violated the TCPA because the acknowledgement message was sent without consent.

Now, the TCPA states, in part, that companies or individuals may not use an automatic dialing system to place telephone calls without prior consent unless it is an emergency.  Through several high court rulings, precedence has determined two key things relating to SMS messages. 1) An SMS aggregator or automatic messaging platform IS considered an automatic dialing system under the TCPA, and 2) an SMS message IS considered a phone call under the TCPA.

My belief is that Twitter DID have explicit prior consent, obtained when the phone numbers were registered with Twitter.  As stated in my earlier blog, to register a phone number with Twitter, a user with a Twitter account must first log into Twitter, register their mobile number with Twitter, and send a validation SMS to Twitter with the word GO in it.  Revoking that consent is not something that is written into TCPA.  The legal grounds for that actually falls within the CAN-SPAM act, which states, in part, that requests to be removed from communication lists must take place within 10 days.  And for the record, the CAN-SPAM act only applies if the SMS is sent via SMTP protocol as opposed to the more common SMPP protocol.

Twitter did not violate any part of the TCPA or the CAN-SPAM act. In fact, they went above and beyond the legal requirements by offering an immediate opt out method. The acknowledgement of the opt out is both legal, and one of the accepted (and encouraged) practices in SMS marketing.  The plaintiffs simply have no legal leg to stand on. I honestly hope that Twitter fights this in court as opposed to settling.


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