United States: Everalbum's User Referral Program Compliant Under TCPA

Photo sharing and storage app Everalbum ("Ever"), and other social media apps that send SMS invitations to a user's contacts to download the app only at the user's direction comply with all applicable laws, according to the courts and the federal agency charged with overseeing communications, the Federal Communications Commission ("FCC"), that have had to evaluate apps similar to Ever.

Social media apps have recently become a target of lawsuits under a federal statute called the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The TCPA was enacted in 1991 to combat telemarketing faxes and robo-calls to land lines. As technology developed, the statute's prohibitions were extended to the use of robo-texting, most commonly used in connection with mass marketing campaigns. Now, with the proliferation of social media apps that allow users to invite their friends and family members to connect with them, plaintiffs' lawyers have been bringing claims against app providers with increasing frequency on the ground that invitational text messages sent by apps violate the TCPA.

The FCC and various courts have determined, however, that an app provider cannot be held liable under the TCPA where the app requires the user to select whom they wish to send an invitation to and only sends text messages to contacts specifically selected by the user, and only after the user has affirmatively pressed another button in order to cause the text message to be sent. Indeed, even if an app automatically selects a user's contacts to receive an invitation, this action will not violate the TCPA as long as the user can choose not to send these contacts an invitation by de-selecting them.

In 2015, the FCC examined the apps operated by Glide and TextMe. The Glide app automatically spammed a user's contacts with text messages even though the user had not selected for any of her contacts to receive the invitations. The FCC determined the Glide app violated the TCPA because the "app user plays no discernible role in deciding whether to send the invitational text messages, to whom to send them, or what to say in them." By contrast, the TextMe app enabled users to send invitational text messages to contacts in their address book after tapping a button that read "invite your friends," choosing whether to "invite all their friends or [] individually select contacts," and choosing to send the invite by selecting another button. The FCC found TextMe not liable under the TCPA because "the app user and not TextMe is the maker of the invitational text message." Numerous courts have adopted and applied this same reasoning in litigation.

Most recently, a California federal court considered an app operated by Life360, which allows users to communicate with and view the location of friends and family who have also downloaded the app and joined the user's circle. Once a user has created an account, she is asked to indicate whether she gives the app permission to access her list of contacts in her smartphone's address book. If the user provides access, the app immediately displays a list of "recommended" contacts whom Life360 believes the user is most likely to want to invite. The user also has the option of scrolling through her entire address book and selecting to whom else she wishes to send an invitation. At the top of this screen, the text "Add Member" appears, and obvious checkmarks appear next to each contact that the user has selected to send an invitation to. The "Invite" button at the bottom of the screen also indicates the total number of contacts selected and a user must press the "Invite" button for the invitations to be sent. The court found that Life360 did not violate the TCPA because Life360 users choose which of their contacts should receive an invitation and then affirmatively press an "invite" button before invitations are sent.

Another court dismissed a TCPA claim against Shopkick for its shopping app, which offers customers rewards for walking into participating stores, also because users must choose whom, if anyone, from their phone's contact list to have invitational text messages sent to. The court found that the "generic and commercial" nature of the text message invitations at issue—which "provide[d] a link to the Shopkick website accompanied by the phrase 'Check it out'"—was immaterial and irrelevant to its holding that the Shopkick app only sends invitations at the user's affirmative direction.

WhisperText similarly prevailed in a lawsuit against its social networking app Whisper, which allows users to anonymously share photos and messages. When new users download Whisper, they are given the opportunity to anonymously invite their contacts to download the app as well, although invitees receive an impersonal, unsolicited text message from a ten-digit phone number registered to WhisperText. Here again, a court found that because human intervention caused the invitations to be sent, and not a platform that harvested and sent out text messages on its own, WhisperText had not violated the TCPA.

Like other apps that have been deemed legally compliant, Ever allows its users to decide whether to send any invitational text message and to whom. As part of the Ever Referral Program, after downloading, installing and registering for the app, Ever offers its users the opportunity to obtain extra storage by asking if any of their friends also want to download the app. Users, however, can skip this step by clicking on "No Thanks." If the user clicks on "Get Free Storage," he or she is informed that Ever would like to access the user's contacts in order to send an invite. Again, the user can skip the invite step by clicking on "Don't Allow." If the user affirmatively clicks "OK," then he or she is taken to a screen that shows the names of his/her contacts. The user can select which persons he/she wants to receive the invite. The user is again given the option to skip this step by clicking on "Not Now." In order to send the invitational text messages, in either version of the screen, the user clicks on "Get Free Storage." Accordingly, the process Ever has implemented to enable users to send text invitations to their contacts is substantially identical to those the FCC and courts have determined are legally acceptable. It is therefore no wonder Ever has so many loyal consumers.

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