A recent decision out of the Northern District of California brings good news for developers of mobile apps that incorporate text messaging functions. Those functions may create the risk of claims under the Telephone Consumer Protection Act, which generally prohibits the delivery of a text message without the recipient’s express consent. But in Cour v. Life360, Inc., U.S. District Judge Thelton E. Henderson granted defendant Life360’s motion to dismiss a putative TCPA class action after determining Life360 could not be held liable under the TCPA for a text initiated by a user of Life360’s messaging and geolocation application.
The plaintiff alleged that he received a single, unsolicited text message from Life360, which operates a mobile application that allows users to text and see the location of fellow users on their contact lists. According to the plaintiff, after users download the application and set up an account, the application requests access to their contact lists so they can invite their friends and family to join. Users choose those in their contacts they wish to invite and then press an “Invite” button on the screen to send the invitations via text message. Users are not told how or when those invitations will be sent.
Plaintiff filed claims under the TCPA and California’s Unfair Competition Law (UCL) on behalf of himself and a nationwide class of persons that received at least one text message from or on behalf of Life360. Life360 moved to dismiss both claims.
One Text Sufficient to Confer Standing Under Spokeo
Life360 first argued that the plaintiff lacked Article III standing because he failed to allege a concrete injury, as required under the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). But the Court rejected that argument, holding that even though the plaintiff received only one text, the invasion of privacy it caused was sufficiently concrete to confer standing.
Life360 Not Liable Under the TCPA or UCL
The key disagreement between the parties was whether Life360 or its user was responsible for “initiating” the invitational text message sent to the plaintiff. Relying on guidance from the Federal Communications Commission’s July 2015 declaratory ruling, the Court ruled that the user—and not Life360—initiated the text to plaintiff, and thus Life360 could not be held liable.
The Court reasoned that Life360’s users have to affirmatively choose which of their contacts will receive an invitation and then press the “Invite” button to actually send the invitations. Even though Life360 does not inform its users how or when those invitations will be transmitted, given the TCPA’s purpose of preventing invasions of privacy, “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.” Consequently, Life360 could not be held liable for the text message under either the TCPA or the UCL.
As this case demonstrates, to mitigate the risk of TCPA liability, developers of messaging software or applications should ensure that any text messages sent through their platforms are initiated by the users themselves through their affirmative conduct.
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For more on the Telephone Consumer Protection Act’s application to text messages, see FCC Rules That Opt-Out Confirmation Text Messages Do Not Violate the TCPA; G2G, Yo Quiero TB: Taco Bell Found Not Liable for Franchisee Text Message Campaign; Face Off: Consumer Sues Hockey Team Over Text Messages. For more on the TCPA in general, see FCC Clarifies Its Interpretations of the Telephone Consumer Protection Act, Provoking Strong Objections From the Business Community.