In Kauffman v. CallFire, Inc., et al., Case No. 14-cv-01333 (S.D. Cal.), the District Court, in granting summary judgment for the Defendant, followed the guidance and standard set forth in the Federal Communication Commission’s 2015 Declaratory Ruling and Order, In re Rules & Regs. Implementing the TCPA of 1991, 30 FCC Rcd. 7961 (2015).  In concluding that Defendant CallFire, an internet-based transmitter of text messages, was not the initiator of the text messages at issue, the Court looked to the FCC’s treatment of the TextMe and Glide petitions, wherein the FCC focused on (1) the party taking the steps to physically send a text message, and (2) whether another person or entity was so involved in placing the text as to be deemed to have initiated it.

Here the Court applied that standard when it focused its analysis on (1) the transmitter’s degree of involvement in selecting the content, timing, and recipients of the message; and (2) whether the transmitter had notice of the illegal nature of a message.  As in TextMe, the Court here determined that CallFire did not initiate the text messages at issue based on its lack of involvement in selecting the content, timing, and recipients of the messages.  Specifically, CallFire required its users to take affirmative steps to determine whether, when, and to whom they would send text messages – i.e., create the telephone number contact lists and select when to initiate the messages.  Additionally, CallFire had no role in drafting the messages.

Similarly, users of the TextMe app were required to engage in a multistep process where the user must “(1) tap a button that reads ‘invite your friends’; (2) choose whether to ‘invite all their friends or [] individually select contacts’; and (3) choose to send the invitational text message by selecting another button.”  2015 Declaratory Ruling and Order, ¶36.  The Court noted that in comparison to the TextMe app, “CallFire’s degree of involvement in sending text messages to Plaintiff was even smaller … .”  CallFire, at p. 6.

In sum, the Court held that where an app provider/transmitter has no discernible involvement in deciding whether, when, to whom, and the content of an invitational text message, that app provider/transmitter is less likely to be found liable under the TCPA.  Therefore, this case stands for the proposition that, under the FCC’s two-prong approach to determine whether a transmitter or a transmitter’s user “makes” or “initiates” a text message, courts can look to the totality of the circumstances, including the function, process, and the level of involvement/control by both the provider/transmitter and user.