Facebook Seeks To Appeal Robo-Texting Decision

Facebook is asking a federal judge for permission to immediately appeal his refusal to dismiss a class-action lawsuit accusing the company of illegally sending people messages about their friends' birthdays.

"Reversal on appeal would likely result in the immediate termination of the litigation, thus avoiding protracted class action litigation," Facebook argues in papers filed late last week with U.S. District Court Judge Thelton Henderson in San Francisco.

The lawsuit dates to 2016, when Florida resident Colin Brickman alleged in a class-action complaint that Facebook's birthday texts violate the Telephone Consumer Protection Act, which prohibits companies from robo-texting people without their permission.

Facebook unsuccessfully asked Henderson to dismiss the case for several reasons, including that it has a free speech right to send the texts. Henderson rejected that argument, ruling that the Telephone Consumer Protection Act is constitutional because it serves a "compelling government interest in promoting residential privacy," and is neither too broad or too narrow to accomplish that goal.



The social networking service also unsuccessfully argued that Brickman's complaint didn't contain enough facts to show that the company used an automated dialer to send the texts.

Henderson sided against Facebook, ruling that Brickman's complaint "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."

Facebook argues in its most recent papers that it wants to appeal on both of those issues.

"The appeal would resolve two major controlling questions that would otherwise hang over the case through trial," Facebook writes. "It could thereby give both sides more clarity about the likely outcome and promote the possibility of an earlier resolution."

Alternatively, Facebook is asking Henderson to stay the lawsuit until another appellate court -- the D.C. Circuit Court of Appeals -- has ruled on a separate dispute over robotexting.

Henderson has directed Brickman's lawyers to respond to Facebook's motion by March 3.

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