Last month, the federal district court in San Diego dismissed a putative class action lawsuit against mobile app provider Poshmark, Inc. (“Poshmark”) in connection with text message marketing delivered via the Poshmark app.
How can text message marketers protect themselves from TCPA liability?
Poshmark Mobile App and Text Message Marketing
Poshmark is the provider of an online fashion marketplace. The Poshmark mobile app allows users to buy and sell used women’s clothing and accessories.
The Poshmark app’s “Find People” feature allows users to voluntarily invite their saved contacts to join Poshmark via text message marketing. Contacts who are invited via Poshmark receive a text message containing an invitation “to view and buy the wares now being sold through POSHMARK” and a link to the subject user’s Poshmark “closet.”
TCPA Class Action Lawsuit
On two separate occasions in January 2015, a registered Poshmark user reportedly used the app’s “Find People” feature to deliver the above-referenced promotional text message to all of the mobile phone numbers saved in her contact list. In September 2016, one of the text message recipients filed a putative class action lawsuit against Poshmark in the U.S. District Court for the Southern District of California (Case No. 16-cv-2359) for alleged violations of the Telephone Consumer Protection Act (“TCPA”). The named plaintiff brought the claim on behalf of every U.S. consumer who had received text message marketing delivered via the Poshmark app since 2012.
On May 15, 2017, the Court granted Poshmark’s motion for summary judgment, dismissing the putative class action.
Focusing its analysis on the Federal Communication Commission’s (“FCC”) 2015 Declaratory Ruling and Order, the Court found Poshmark’s text message marketing to be comparable to that of the mobile application TextMe, which also allowed users to send invitational text messages to contacts in their phone’s address book and predetermined the content of its promotional text messages. Despite noting “that TextMe’s control of the content of the invitational text message is a reason for concern,” the FCC determined in 2015 that TextMe was not the maker or initiator of its invitational text messages because users chose who to invite and when to invite them. In the same vein, the Court held that Poshmark users, and not Poshmark, took the actions necessary to send text message marketing.
Last month, dissatisfied with the ruling, the named plaintiff filed his notice of appeal with the Court.
Text Message Marketers: Proceed with Caution
While the above-referenced matter is reassuring for app providers, the FCC’s 2015 ruling does not exempt all text message marketers from initiator liability under the TCPA. When determining who delivers a text message, courts and regulators will weigh a number of factors to determine whether the user or the platform provider was ultimately in control. Undoubtedly, obtaining the prior express written consent of consumers remains the safest route for text message marketing.