In Reichman v. Pshmark, Inc., 2017 WL 2104273, at *2–3 (S.D.Cal., 2017), the Court granted summary judgment on the basis that totality of the circumstances did not trigger the TCPA.
In determining whether an app or its user is the maker of a call, the FCC explained that it looks to “the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” Id. at 7980. Because the TCPA does not define the term “to make any call” and the FCC’s interpretation of the TCPA is reasonable, the Court uses the FCC Order to inform its analysis. See Satterfield, 569 F.3d at 953; see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir. 2017) (finding reasonable the FCC’s interpretation of the TCPA in the 2015 FCC Order). Of particular relevance to this case, the FCC determined whether two app providers, Glide and TextMe, “make” calls for purposes of the TCPA. The FCC used Glide to illustrate when an app provider is a maker of a call. Glide was a video messaging service that automatically sent “invitational texts of its own choosing to every contact in the app user’s contact list” unless the user affirmatively opted out. FCC Order at 7982–83. The FCC found “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.” Id. at 7983. Given these facts, the FCC concluded “Glide makes or initiates the invitational text messages by taking the steps physically necessary to send each invitational text message or, at a minimum, is so involved in doing so as to be deemed to have made or initiated them.” Id. In contrast, the FCC reached the opposite conclusion with TextMe. Unlike Glide, users had to take several affirmative steps for TextMe to send invitational text messages. Users had to “(1) tap a button that reads ‘invite your friends’; (2) choose whether to ‘invite all their friends or [ ] individually select contacts’; and (3) choose to send the invitational text message by selecting another button.” FCC Order at 7983–84. Although the FCC expressed concern that TextMe controlled the content of the messages, the affirmative choices by users led the FCC to conclude the user, not TextMe, was the maker of the text message. Id. at 7984. The FCC reasoned “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.” Id. Defendant argues its app functions just like TextMe, and therefore, Ms. Tolentino made the calls within the meaning of the TCPA. In support, Defendant has offered evidence that, as was the case with TextMe, it requires users to take affirmative steps to determine whether to invite a contact, to whom to send an invitational message, and when that invitational message is sent. For example, Ms. Tolentino caused a text message to be sent to Plaintiff by (1) granting the app permission to access her contact list, (2) tapping on the “Find People” button, (3) choosing the “Find friends from your contacts” option, (4) determining whether to invite all her contacts or select contacts, and (5) choosing to send the invitational message by selecting the “Invite All” button. Based on these affirmative steps, it is apparent Ms. Tolentino, not Defendant, took the action necessary to send the text messages. Had Ms. Tolentino decided not to take any of these steps, a text message would not have been sent to Plaintiff. Plaintiff has not offered any evidence in dispute, and in fact, does not appear to dispute Defendant’s showing as to the affirmative steps users must take to cause invitational messages to be sent. Rather, Plaintiff argues there are genuine issues of material fact that preclude summary judgment, such as whether Defendant adequately informed its users of the method in which invitational messages will be sent. Defendant, however, has offered evidence demonstrating that the app indicates to users whether invitees will receive the invitational message by text or e-mail. Under each contact’s name, either a telephone number or an e-mail address appears based on the method of contact saved in the user’s contact list. As a result, it is apparent to users that if they decide to invite a contact whose telephone number appears, then an invitation will be sent by text message rather than by e-mail. In any event, whether Defendant informed its users regarding the method of invitation (text or e-mail) is not material to determining who “makes” a call under the TCPA. “The goal of the TCPA is to prevent invasion of privacy, and 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.” Cour v. Life360, Inc., No. 16-CV-00805-TEH, 2016 WL 4039279, at *4 (N.D. Cal. July 28, 2016) (internal citation omitted).