District Court Finds that Texts Sent Via Mobile App Not Subject to TCPA Due to Users' "Affirmative Choices" to Send Messages

TCPA FCC

On August 24, a California district court ruled in favor of a rewards-based app company, rejecting plaintiffs’ arguments that the company violated the Telephone Consumer Protection Act (TCPA). Huricks v. Shopkick, Inc., No. c-14-2464-mmc (N.D. Cal. Aug. 24, 2015). In Huricks, plaintiffs brought a putative class action, arguing that the company’s mobile app sent spam text messages with links to the company’s website to mobile phones without consumers’ consent in violation of the TCPA and a derivative claim under the California Business and Professions Code. In rejecting plaintiffs’ claims and granting summary judgment on all counts, the court relied on a recent FCC Order where the FCC ruled, among other matters, that a company was not the maker or initiator of invitational text messages subject to the TCPA’s requirements when users of the app make a series of “affirmative choices” in order for the text messages to be sent. The court ruled that, even though the company controlled the text message’s content, the company’s evidence established that a user of its app “must [have] proceed[ed] through a multi-step invitation flow within the app” to cause text messages to be sent to the user’s contacts. The court noted that users of the app had to (i) tap a button to invite friends, (ii) choose which contacts to invite, and (iii) choose to send the text message by selecting another button.  The court concluded the company was not the initiator of these texts under the TCPA and granted the company’s motion for summary judgment.