The TCPA makes it unlawful to initiate a call or text using an automatic telephone dialing system without the express consent of the recipient. A May 15th decision demonstrates the importance of a marketplace app’s user functionality in determining whether it initiated a call under the TCPA.

In Reichman v. Poshmark, Inc., No. 16-cv-2359 DMS (JLB), 2017 WL 2104273 (S.D. Cal. May 15, 2017), the plaintiff alleged that the “Poshmark” app that allows users to buy and sell used clothing violated the TCPA based on two text messages urging him to use Poshmark. The plaintiff received the texts via an invitation from his cellphone contact, who did the following: First, the contact used the “Find People” page, which allowed her to select options to find her contacts, either among her phone’s contact list, or via Facebook or Twitter.  She then selected the “Invite All” button on the next page to invite her entire contact list, rather than individually selecting the invite button beside each contact’s name.

Basing its decision on the FCC’s order In re Rules & Regulations Implementing the TCPA of 1991 et al., 30 FCC Rcd 7961 (F.C.C. July 10, 2015) (regarding the “TextMe” app), the Court concluded that the contact’s affirmative steps to invite the plaintiff made her the initiator of the text message, not Poshmark. The plaintiff would not have received any messages had his contact not taken these steps. As other courts have recognized, “[t]he goal of the TCPA is to prevent invasion of privacy, and the person who chooses to send an unwanted invitation is responsible for invading the recipient’s privacy . . .”  Cour v. Life360, Inc., No. 16-CV-00805-TEH, 2016 WL 4039279, at *4 (N.D. Cal. July 28, 2016) (internal citation omitted).  Therefore, the plaintiff’s contact was the initiator.

This decision will prove to be particularly useful to app developers who have the ability to program their software in a way that incentivizes the users themselves to initiate promotional messaging. Doing so would allow the developer to circulate their advertising, while the users serve as the initiators of the texts.