United States: Court Dismisses TCPA Claim Because Text Messaging App Does Not "Make" Calls

In Cour v. Life360, Inc., the United States District Court for the Northern District of California granted a defendant's motion to dismiss a claim under the  Telephone Consumer Protection Act, finding that the defendant's system for sending text messages did not constitute "making" a call under the statute.  In reaching its decision, the Court advanced a narrow interpretation of what it means to "make" a call under the TCPA. 

Cour involved allegedly unsolicited text messages.  According to the plaintiff, he received a text message from Life360 saying "TJ, check this out....", despite not being a Life360 user and never downloading the Life360 app.  Because he claimed that this text message was unwelcome, the plaintiff sued Life360 for allegedly "mak[ing]" a call without express consent – a practice generally restricted under the TCPA. 

For purposes of the Court's decision, it presumed that Life360 works in the following manner: (1) Life360 asks users for permission to access their phone's contacts; (2) users who allow such access are brought to a screen giving them the option to "add members;" (3) users are then given the option to "invite" specific members of their contacts to join Life360; and (4) Life360 sends text messages to those contacts "invited" by a member. 

In deciding to dismiss the plaintiff's claims, the Court's analysis turned on whether Life360 "makes" calls under the TCPA.  It held that Life360 does not.  According to the Court, the fact that Life360 requires users to choose which of their contacts should receive an invitation, and then requires users to press the "invite" button before the text message is sent, means that Life360 is not making "calls" under the TCPA.   

In reaching this conclusion, the Court was guided by the Federal Communication Commission's July 10, 2015 order, wherein the FCC analyzed whether two companies, TextMe and Glide, "make" calls under the TCPA.  The Court found the FCC's analysis "[o]f particular relevance" because it clarified for the Court the type of actions that constitute "making" calls in the context of apps sending invitational text messages.  For example, the Court noted the FCC's conclusion in an analogous situation that the "app user's actions and choices effectively program the cloud-based dialer to such an extent that he or she is so involved in the making of the call as to be deemed the initiator of the call ... ." 

Ultimately, in the Court's view, the goal of the TCPA is to prevent the invasion of privacy.  When considering the facts of the case and the FCC's interpretation of the TCPA, the Court concluded that the person who chooses to send an unwanted invitation through Life360, and not Life 360 itself, "is responsible for invading the recipient's privacy."  As a result, the Court dismissed the plaintiff's TCPA claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Timothy St. George
David N. Anthony
Alan D. Wingfield
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