Two federal district courts recently found in favor of defendant mobile app operators in cases alleging violations of the Telephone Communications Privacy Act. 

Two federal district courts recently found in favor of defendant mobile app operators in cases alleging violations of the Telephone Communications Privacy Act (TCPA). First, the U.S. District Court for the Northern District of California granted summary judgment in favor of Shopkick Inc., rejecting plaintiffs’ claim that the company violated the TCPA by sending text messages to certain users’ contacts through its app without prior written consent. Plaintiffs alleged that they each received a text message, purportedly sent by a friend, which encouraged them to “check [the app] out” and included a link to Shopkick’s website. In a separate case, also before the Northern District, plaintiff alleged that the maker of the Whisper anonymous social messaging app violated the TCPA by sending a similar text message with a hyperlink. Both app operators argued that they did not need to obtain plaintiffs’ prior written consent to receive such messages because app users actually “initiated” each text.

In each case, the court relied on the FCC’s recent declaratory ruling (see our article here), in which the agency found that a provider is not the sender of text messages where users of the app must make a series of “affirmative choices” in order to cause the messages to be sent—even if the app provider controls the content of those messages and they are essentially advertisements for the app. In its ruling, the FCC specifically concluded that users of the TextMe app were so involved in the process of sending an invitational text to their address book contacts that the app user (not TextMe) “initiated” the text. In Shopkick, the court found that the multi-step process required to send invitational messages through the app was effectively identical: users had to affirmatively grant permission for the app to access the user’s contacts, click “continue,” select contacts, and then click “Invite Friends.” Similarly, in WhisperText, the court found that a user’s affirmative direction “foreclose[s] any plausibility that WhisperText sends messages using an ATDS [Automated Telephone Dialing System], without human intervention.”

TIP: Shopkick and WhisperText are two more in a long line of cases that serve primarily as a reminder of the significant class action activity surrounding the TCPA and communicating with consumers via their cell phone numbers, where issues of consent will be decided on a fact-specific basis. And while the court relied on the FCC’s interpretation here, the TCPA and its implementing regulations do not specifically address apps like TextMe, Shopkick, and Whisper.