Path Asks Judge to Dismiss Case of Wireless-Spam29 May, 2013 By: Doug McPherson
SEATTLE – Mobile social network Path is asking a federal judge to dismiss a lawsuit alleging the company violated a federal consumer protection law by sending unsolicited text ads to people's cell phones.
In March, Illinois resident Kevin Sterk filed a complaint in court that said he received an SMS from Path stating that a user, Elizabeth Howell, wanted to show him photos on the service. That message contained a link to a site where he could register to join. Howell and Sterk knew each other through the group “Chicago Twenty Something,” Path said.
The lawsuit stems from Path's invite-a-friend feature that lets users invite friends to join via SMS messages. Sterk says Path is violating the Telephone Consumer Protection Act, which prohibits companies from using automated dialing services to send SMS messages without the recipients' consent. That law provides for damages of $500 per incident. Sterk, who is seeking class-action status, is asking for monetary damages and an order prohibiting Path from sending unsolicited text messages.
But Path counters it didn't violate the law because it didn't initiate the message, but only sent it on behalf of Howell, Sterk's friend.
In a motion filed this week with U.S. District Court Judge Samuel Der-Yeghiayan in the Northern District of Illinois, Path wrote, “Path is a user-centered service, and as such, all text messages are sent by or on behalf of a Path user.”
Path argues it adds that the substance of the message shows that “it was solely an informational text message,” and not an ad. Path also argues that it doesn't use the type of automated dialing service covered by the Telephone Consumer Protection Act. “Path’s system is technologically incapable of texting or calling any telephone numbers in a random or sequential way,” the company says.
Path wants Der-Yeghiayan to dismiss the lawsuit or delay proceedings while the Federal Communications Commission (FCC) considers a petition filed by Skype's GroupMe. That company is seeking a ruling that its texting app shouldn't be considered an automated dialing service. GroupMe also argues that intermediaries such as itself should be able to rely on users' statements that the people they text have consented to receiving messages.
Sterk's attorney, Jay Edelson, has filed similar lawsuits against other Web companies. In one case, Google agreed to pay $6 million to settle allegations that its social apps company Slide violated the Telephone Consumer Protection Act. That case stemmed from allegations that Slide's group messaging app used an automated dialing service to send SMS messages to people without first getting their consent.