The United States District Court for the Southern District of California recently granted Poshmark’s motion for early summary judgment in connection with a proposed Telephone Consumer Protection Act (TCPA) class action suit. Poshmark, which operates a mobile application that allows users to buy and sell clothing, faced allegations that it violated the TCPA when a user sent invitational text messages through the application to non-users without obtaining prior express written consent. In granting Poshmark’s motion, the court found that Poshmark was not the maker of the calls (the text messages) under the TCPA because the mobile application was designed to require a user to take a number of proactive steps to initiate the invitational message. Namely, the user had to navigate several screens, had the option to choose whether to send messages, to whom to send the text messages, and when to send the text messages. In its determination, the court cited the Federal Communications Commission’s Declaratory Ruling & Order from 2015 to determine whether a mobile application or its user is the maker of a call for TCPA purposes. In relevant part, the test examines “(1) who took the steps necessary to physically place the call; and (2) 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.”
TIP: Companies offering mobile applications that allow users to send text messages, such as refer-a-friend or invitational texts, to other individuals should review this functionality to ensure that it complies with TCPA requirements.