A Washington federal court issued a mixed decision for Telephone Consumer Protection Act defendant Lyft recently by allowing the suit to move forward on state law claims, but ruling that the ride-sharing company could not be liable under the federal statute for an advertising campaign that allowed users to send text invitations to their friends.
Kenneth Wright sued Lyft in 2014 alleging violations of both the TCPA and Washington state laws after purportedly receiving an unsolicited invitation to join the service. The message stated that “Jo Ann C.” had sent him a “free Lyft ride worth $25,” and included a link to claim the free ride by downloading the Lyft app.
Lyft moved to dismiss the suit. After analyzing the Federal Communications Commission’s 2015 Declaratory Ruling and Order, U.S. District Court Judge Marsha J. Pechman agreed to toss the TCPA count.
As to who “makes” the call or sends the text for purposes of the statute, the FCC’s order clarified that the maker of the call must be a party with “some ‘direct connection’ … [to] the making of [the] call, a definition which excludes ‘persons or entities, such as third-party retailers, that might have some role, however minor, in the causal chain that results in the making’ of a call,” the court explained. “The maker of the call is determined by looking at ‘the totality of the facts and circumstances surrounding the placing of a particular call’ to determine the party who either ‘[took] the steps to physically place a telephone call’ or was ‘so involved in the placing of a specific telephone call’ as to be deemed to have initiated it.”
“If this sounds like a description of the person who decided to ‘invite’ persons from their contact list to use an app, the FCC [ruling] makes it clear: ‘invitational’ messages sent at the behest of existing users of an app or system do not fall within the ambit of the TCPA,” Judge Pechman wrote. The “invite your friends” system considered by the FCC in its declaratory ruling “is virtually indistinguishable” from Lyft’s, she added.
Wright attempted to distinguish the FCC ruling because the party in that case told app users that an invitational text message would be sent, while Lyft did not specify whether the invite would be sent by U.S. mail, e-mail, a personal phone call, or some other method. “The Court finds this distinction of questionable materiality and the speculation/allegation definitely implausible; i.e., it is not plausible that ‘Jo Ann C.’ did not know, at the moment she pushed the ‘Send Invite’ button, that Plaintiff would receive an e-mail or text message,” the court said.
The FCC’s ruling “resolves whether this form of user-generated invitational text message falls within the restrictions of the TCPA,” Judge Pechman said. “The answer is ‘no.’ Defendant is entitled to a dismissal of the TCPA claim.”
However, the court said Wright’s claims under Washington’s Commercial Electronic Mail Act (CEMA) and Consumer Protection Act (CPA) could move forward. “Unlike the TCPA, it makes no difference if some other party ‘initiated’ the text message to Plaintiff by going through the invitational process,” the court said. “CEMA prohibits ‘initiat[ing] or assist[ing] in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone.”
The court rejected Lyft’s argument that because the $25 ride credit and Lyft app are free, the text message was not “commercial” as defined by CEMA. “It is too narrow a reading of the statute and the intent behind the prohibition,” Judge Pechman found, as neither the statute nor the regulation requires an explicit mention of a good, product, or service where the implication is clear from the context.
As for the state CPA claim, Lyft failed to persuade the court that Wright’s alleged injuries—having to pay a cellular service provider to receive the message, having his privacy invaded, and losing energy stored in the battery of his cellphone, among others—were insufficient to state a claim under the state law to survive a motion to dismiss. “While Plaintiff might run into proof problems with injury claims such as these, that is an argument for another day,” the court said.
To read the order in Wright v. Lyft, Inc., click here.
Why it matters: The Wright decision reiterates the FCC’s declaratory ruling that “invitational” messages sent at the behest of existing users of an app or system do not fall within the ambit of the TCPA. The court’s order also demonstrates that advertisers may not be completely off the hook, as broadly written state statutes may provide a basis for liability for such text messages.