In Huricks v. Shopkick, Inc., 2015 WL 5013299, at *1 (N.D.Cal., 2015), Judge Chesney granted summary judgment to a TCPA defendant based on the FCC’s 2015 order.
In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege that Shopkick “operates a shopping application for Apple and Android devices that urges consumers to purchase retail goods for sale close to the consumers’ physical location” and that the “App” has “nearly 7 million users.” (See FAC ¶ 18.) Plaintiffs also allege that Shopkick sent to their respective cellular telephones unconsented “[s]pam messages.” (See FAC ¶¶ 35, 40.) Specifically, plaintiffs allege they each received an identical text message, purportedly sent by a friend, which text message, in addition to containing a “link to Shopkick’s website,” read as follows: “Hey, just gave you 50 bonus points on shopkick – a cool new app that rewards you for shopping. Check it out.” (See FAC ¶¶ 23, 35–36, 38.) Based thereon, plaintiffs assert three causes of action on their own behalf and on behalf of a putative nationwide class. In the First Cause of Action, plaintiffs allege Shopkick violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). In the Second Cause of Action, plaintiffs allege Shopkick violated § 17200 of the California Business and Professions Code, which claim is derivative of the First Cause of Action. In the Third Cause of Action, titled “Injunctive Relief,” plaintiffs seek an order enjoining “further violations” of the TCPA. (See FAC ¶ 61.)
The Court granted summary judgment to the Defendant on the basis that the texts sent pursuant to its app were indistinguishable from those found permissible by the FCC in its “TextMe” Order.
Shopkick argues the Court should defer to the FCC’s interpretation of the TCPA, and that its finding as to TextMe’s invitational text messages is equally applicable to the instant case. As “Congress has delegated the FCC with the authority to make rules and regulations to implement the TCPA,” courts defer to the FCC’s interpretation of a term in the TCPA, so long as the term is “not defined by the TCPA” and the FCC’s interpretation is “reasonable.” See Satterfield, 569 F.3d at 953 (9th Cir.2009). Here, as the FCC noted (see FCC Order ¶ 29), the TCPA does not define “make,” and the Court finds the FCC’s interpretation of “make” is not unreasonable. Indeed, plaintiffs do not argue to the contrary or otherwise suggest the Court should not defer to the FCC’s interpretation of the TCPA as set forth above. The Court thus defers to the FCC’s interpretation and next considers whether Shopkick has shown that the FCC’s ruling as to the TextMe invitational text messages is equally applicable to the Shopkick invitational text messages. Shopkick does not contend that, at the time the subject texts were received by plaintiffs, users of its app had the ability to alter the content of the invitational text message.5 Consequently, as was the case with TextMe, Shopkick controls the content of the text message. Additionally, as was the case with TextMe, the text message is, at least in part if not wholly, an advertisement in that the text message invites the receiver to download Shopkick’s app. (See FAC ¶ 36, Ex. B.) Under the FCC’s reasoning set forth above, those two factors weigh in favor of finding Shopkick to be the sender of the texts. As further explained by the FCC, however, an app user nonetheless is considered the sender where the app user is required to make “affirmative choices” in determining whether to send invitational text messages, to whom to send such messages, and when to send the messages. (See FCC Order ¶ 37.) As to such affirmative choices, Shopkick offers evidence that, at the time plaintiffs received the subject texts, a user of its app “must [have] proceed [ed] through a multi-step invitation flow within the app” to cause text messages to be sent to contacts in the user’s phone. (See Stanek Decl. ¶ 6.) First, the user must have affirmatively granted the Shopkick app “permission to access the user’s contacts in the phone.” (See id. ¶ 6, Ex. A.) Second, when the app provided the user with the option to “invit[e] friends,” the user must have responded by selecting “Continue” rather than “No, thanks.” (See id.) Third, once the user clicked “Continue,” the user would have been shown a series of screens by which he or she was given the option of selecting the contacts to whom the invitations would be sent. (See id. ¶¶ 6–7, Ex. A.) Fourth, once the user selected contacts, the user would have been shown a screen listing the chosen contacts and the “format” in which the // invitations were to be sent,6 after which, to cause the invitations to be sent, the user would have then pressed a button stating “Invite Friends.” (See Stanek Decl. ¶ 7, Ex. A.) Plaintiffs have not offered evidence to dispute Shopkick’s showing as to the steps the user must have taken to cause the invitational text messages to be sent. The Court finds the steps the user must have taken to cause the Shopkick invitational text messages to be sent are indistinguishable in all material respects from the steps a user of the TextMe app must take to cause the TextMe invitational texts to be sent, which steps, as set forth above, are tapping a button stating “invite your friends,” choosing which contacts to invite, and choosing to send the text messages by tapping another button. (See FCC Order ¶ 36.) Although plaintiffs endeavor to show the FCC’s decision as to the TextMe app nonetheless is inapplicable to the Shopkick app, the Court, as discussed below, is not persuaded.