• by Wendy Davis  @wendyndavis, December 1, 2014

Twitter can't shake a lawsuit accusing it of violating an anti-spam law by sending text messages to recycled phone numbers.

In a ruling issued last week, U.S. District Court Judge Vince Chhabria rejected Twitter's position that the prior user of the phone number consented to receive text messages. “This argument fails,” Chhabria wrote in an opinion allowing the lawsuit to proceed.

The court battle dates to June, when Taunton, Mass. resident Beverly Nunes sued Twitter for allegedly violating the Telephone Consumer Protection Act. That law prohibits companies from using automated dialing systems to send SMS ads to people without their consent.

Nunes said in court papers that she began receiving numerous “impersonal, promotional text messages” from Twitter in November of 2013, immediately after purchasing a cell phone. At one point, Nunes allegedly received up to six messages a day, all from Twitter's short code. Many of those texts appeared to promote an online coupon site. For example, one message allegedly included the phrase, “There’s a new Swagcode out,” and directed her to click on a link.

Nunes said she never opened a Twitter account or opted in to receive messages from the microblogging service. She is seeking class-action status.

Twitter unsuccessfully argued that the case should be dismissed for several reasons, including that the prior holder of the phone number consented to receive messages.

Chhabria pointed out in the ruling that the 7th Circuit Court of Appeals rejected a similar argument in a dispute involving a debt collector. In that case, the appellate court ruled that a debt collector who called the wrong recipients could be sued for violating the TCPA (which applies to voice calls as well as text messages). In that case, the recipients who sued were using reassigned phone numbers, and the subscribers who previously had those numbers apparently consented to receive the calls.

The appeals court likened the recipients in that case to “bystanders,” noting that they were now “out of pocket the cost of the airtime minutes,” and also have “had to listen to a lot of useless voicemail.”

Twitter also said the complaint didn't adequately allege that the messages were sent via an automated dialing system.

Chhabria rejected that argument as well, ruling that the Federal Communications Commission's definition of automated dialing system appears to cover Twitter's equipment.

The judge said that the FCC's definition “is not crystal clear,” but still “appears to encompass any equipment that stores telephone numbers in a database and dials them without human intervention.”

He added: “This ... is the way Nunes alleges that Twitter’s equipment works in this case.”

Questions about the definition of automated dialers are at the center of a similar lawsuit against Yahoo, which also allegedly sent text messages to the wrong recipient. The 3rd Circuit Court of Appeals is still considering that matter.