District Court Finds Social Media Company Is Not “Sender” of Calls Under TCPA

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

A federal court in California recently dismissed a class action accusing mobile application company Life360, Inc. (“Life360”) of violating the TCPA on the grounds that the company could not be liable for texts initiated by app users. The Court found that Life360 was not the “sender” of the texts initiated using its platform and, therefore, could not be held liable under the TCPA, because users—not the application itself—selected when and to whom the texts were sent.

Life360 operates a mobile phone application that allows users to communicate with and see the location of their friends and family. Users of the app who provide Life360 with access to their phone’s contact list can direct the app to “Invite” certain contacts to use the app and share their location and exchange messages with the user.  According to the complaint, the user is not instructed on how or when invitations will be sent.  Plaintiff Terry Cour alleged that Life360 sent him unwanted texts even though he was not a Life360 user and had never downloaded the app onto any device.  Following the receipt of text messages from the app, Cour filed a lawsuit on behalf of himself and a class of persons similarly situated, alleging that Life360’s texts violated the TCPA.

The court relied on the Federal Communications Commission’s (“FCC”) 2015 Opinion, which considered whether certain social media companies were the “sender” of calls as defined by the TCPA, and on recent decisions of other courts in cases involving similar applications. The FCC had concluded that one company, Glide, “makes” calls because it “automatically sends invitational texts of its own choosing to every contact in the app user’s contact list with little or no obvious control by the user” but the another company, TextMe, did not make calls, because it required the user to affirmatively choose to send texts to specific and selected contacts.  Here, the court found that Life360 was more similar to TextMe because of the application’s requirements that the user make “affirmative choices” in choosing to invite specific contacts to use the software.  The court was not persuaded by Cour’s argument that Life360 did not inform the application user how the selected contacts would be invited, i.e., whether they would receive a text message or be notified in some other way.  Instead, the court held “that it makes no difference, for purposes of determining who ‘makes’ a call under the TCPA, whether an application informs the user how invitations will be sent.”  The court relied on another recent decision, McKenna v. WhisperText, for the proposition that the lack of disclosure to the application user was “not a dispositive factor in this analysis.”

However, the court rejected Life360’s argument that Cour lacked standing because he had not alleged a concrete injury—a necessary component to establish injury in fact for Article III standing under the U.S. Supreme Court’s recent decision in Spokeo, Inc. v. Robins.  (Our previous analysis of Spokeo, Inc. can be found here.)  The court found that Cour had not alleged damages based simply upon a procedural violation of the statute but rather that he suffered a concrete injury because Life360 invaded his privacy, which the court held to be sufficient to meet the standing requirements of Article III under Spokeo.