A California federal court judge recently ruled that a mobile app company is not liable under the Telephone Consumer Protection Act where a friend of the plaintiff initiated a text invitation to download and join the mobile app.
Terry Cour II received the following text message: “TJ, check this out!1f360.co/i/g2a5iJaTB005.” Cour texted back: “Who is this?” and received another text stating, “I’m sorry, but we weren’t able to understand your message. Please reply YES, NO, or HELP.” Instead of replying, Cour filed suit in California federal court against Life360 asserting a violation of the TCPA and California’s unfair competition law.
Cour claimed that once users downloaded the Life360 app, they were asked, “Want to see others on your map?” Users who click on the “Yes” button are asked permission for Life360 to access their contacts. Users who allow permission are brought to a screen to “Add Member[s],” with “Recommended” contacts preselected. A user can select additional contacts or deselect the preselected individuals before being instructed to press the “Invite” button.
Cour argued that users were not given any information on how invitations would be sent, with Life360 retaining “full control” over the content of the text message, whether it would be sent, and the actual transmission of the text.
But U.S. District Court Judge Thelton E. Henderson viewed the process differently.
He agreed with Life360 that Cour failed to state a TCPA claim because his allegations did not establish that the defendant “made” the unwanted call. He looked to last year’s Federal Communications Commission Declaratory Ruling and Order for support.
There, the FCC explained that depending on the totality of the facts and circumstances of a particular call, a decision maker should consider “who took the steps necessary to physically place the call” and “whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.”
The order also examined the potential TCPA liability of two companies, TextMe and Glide. On the one hand, the FCC found that Glide “made” calls because it automatically sent invitation texts of its own choosing to every individual in a user’s contact list with “little or no obvious control” by the user, but TextMe evaded liability because users must select the option to invite friends, select the contacts to receive an invitation, and then choose to send the text.
In rejecting the plaintiff’s contention that because Life360 did not inform app users about how the selected contacts would be notified, Judge Henderson concluded that “Life360 is … much more similar to TextMe.” “[I]t makes no difference, for purposes of determining who ‘makes’ a call under the TCPA, whether an application informs the user how invitations will be sent,” the court said. “The 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 even if that person does not know how the invitation will be sent.”
Judge Henderson was also not persuaded by the fact that Life360 automatically preselects certain contacts to invite while TextMe does not. “This difference is immaterial,” he wrote. “Prior to reaching the screen on which the contacts have been pre-selected, the Life360 user must first indicate a willingness to share contacts with the app and, upon answering that question in the affirmative, has the option to de-select any contacts whom the user does not want to invite—and, as Cour’s counsel conceded at oral argument, can choose to de-select all of the pre-selected contacts so as not to invite anyone.”
Invitations are not sent until the user presses the “invite” button, the court added, and are only sent to those contacts selected by the user. “As the FCC found regarding TextMe, these ‘affirmative choices by the app user’ lead this Court to conclude that it is the app user who initiates the invitation and, therefore, is the maker of the call. Life360 is not the maker of the call and, consequently, cannot be liable under the TCPA.”
To read the order in Cour v. Life360, Inc., click here.
Why it matters: Thanks to the FCC’s 2015 Declaratory Ruling and Order and the Cour order, apps that require a user to invite others will avoid TCPA liability. By requiring “affirmative choices by the app user,” such as electing to invite friends, selecting the friends to invite, and pushing the button to send the invitations, an application can say with some safety that the user “made” the call for purposes of the statute.