• by Wendy Davis  @wendyndavis, April 28, 2017

A federal judge has authorized Facebook to immediately appeal a decision requiring the company to face allegations that it illegally sent people messages about their friends' birthdays.

U.S. District Court Judge Thelton Henderson in San Francisco said in a ruling issued Thursday that the case presented unsettled legal questions that could be answered by the 9th Circuit Court of Appeals, and that referring the matter to that court could lead to a speedier termination of the matter.

The dispute 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.

Brickman alleged that he gave Facebook his cell phone number, but told the company he didn't want to receive text messages. He said in his complaint that he nonetheless received a text from Facebook informing him about a friend's birthday, and inviting him to either post a message on his friend's timeline, or to press "1" on his keypad to post "Happy Birthday!"

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 then asked Henderson to authorize an immediate appeal to the 9th Circuit. The judges on that court have discretion to decide whether to accept the appeal. That court is already slated to consider whether Facebook may have violated the robo-texting law in a different matter. In that case, Montana resident Noah Duguid has asked the court to revive his lawsuit against the company.

Duguid alleged in a 2015 class-action complaint that Facebook repeatedly sent him text messages, even though he had never used the social networking service. Duguid, who apparently had been assigned a recycled phone number by his carrier, alleged that Facebook repeatedly notified him via SMS that his account had been accessed. A trial judge dismissed Duguid's lawsuit, prompting his appeal to the 9th Circuit.

Henderson said in his ruling Thursday that if the 9th Circuit refuses to hear Facebook's appeal, he will stay the matter until another appellate court -- the D.C. Circuit Court of Appeals -- issues a decision in a separate dispute over robotexting regulations.