Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).

The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts. This complaint, however, claims that the plaintiff received texts from Twitter intended for the prior owner of her recycled cell phone number. Relying on a recent Eleventh Circuit decision on recycled numbers, Breslow v. Wells Fargo Bank, the complaint argues that although the prior owner may have agreed to receive texts, that consent is irrelevant because it is the plaintiff, rather than the prior owner, that actually received the messages. In other words, the plaintiff alleges that businesses that engage in phone-based marketing must accept the risk that an outdated phone number will subject them to TCPA liability. We previously noted that the Breslow decision “makes it more likely that, without FCC action, prerecorded calling will become increasingly fraught with potential TCPA liability, leaving the many businesses that rely on telemarketing in a difficult position.” This lawsuit illustrates that the potential exposure extends to companies employing automated texting technology as well.

That liability risk has not gone unnoticed: currently, ACA International and United Healthcare each have petitions pending at the FCC that seek to obtain either a safe harbor for companies that mistakenly contact recycled numbers, or clarification that there should be an exemption from liability for non-telemarketing calls to recycled wireless numbers. Either provision could at least arguably include Twitter’s texts.

The Nunes complaint alleges that there are services available that can track disconnected numbers in real time, including one that provides services that “use continuously updated and highly accurate phone data that gets updated multiple times per minute to tell you instantly . . . whether the subscriber name that you have matches.” It does not, however, analyze the cost of these services relative to the value of mobile phone-based marketing.

The complaint also alleges “consumers are damaged by having to pay cellular telephone service providers for the receipt of Twitter’s unsolicited text messages,” but it is unclear how many subscribers actually pay for each individual text they receive. Recent figures are hard to come by, but according to the Mobile Marketing Association—an organization repeatedly cited in the complaint—as early as 2009, only 30 percent of subscribers with texting capabilities were paying for each individual text.  A 2010 Pew study found that just 13 percent of teenagers had plans under which carriers charged for individual text messages. And those numbers are likely much lower today, as wireless carriers continue to lower prices for bulk or unlimited texting plans.

The complaint further claims that Twitter’s automated messaging system made it difficult to unsubscribe from its messages. Specifically, it alleges that Twitter permitted users to end the automated messages by replying “OFF” but not by using other key words such as “END” or “STOP.” It alleges that consumers revoked their consent even if they replied with the wrong cancellation command, and implies that any further texts were therefore without consent.

Regardless of the outcome of the case, there are some lessons that can be drawn from this lawsuit. First, for companies that wish to pursue mobile phone marketing, particularly via text messaging, it may be worth exploring subscriber verification services to mitigate TCPA strict liability, even though the total number of impacted recycled wireless numbers at any one moment in time should be a manageable number. Nevertheless, these subscriber verification services are hardly a comprehensive solution: as FCC commenters note, Neustar’s database consists of about 100 million self-reported wireless numbers, but there were an estimated 327 million cell phones in the United States as of 2011.

Second, companies could have their automated messaging systems recognize a wide variety of commands to unsubscribe, including “STOP,” “END,” “CANCEL,” “UNSUBSCRIBE,” and “QUIT.” More flexible ways to terminate messaging delivery should help mitigate damages exposure to TCPA text messaging claims.