United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
Warciak filed suit on behalf of himself and others similarly
situated against One, Inc., the operator of a mobile
application, alleging that One sent him and others
unauthorized text messages. Warciak alleges that, in doing
so, One violated the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227, and the Illinois Consumer Fraud
and Deceptive Business Practices Act (ICFA), 815 ILCS 505/2.
One has moved to dismiss both claims. For the reasons stated
below, the Court denies One's motion to dismiss
Warciak's claim under the TCPA (count 1) and grants
One's motion to dismiss Warciak's claim under the
ICFA (count 2).
operates the "After School App", a social network
application where high school students can send messages
anonymously. After a user has downloaded the application, the
user is prompted to provide access to his or her location in
order for the application to find the user's school. The
application then directs the user to select a school from a
list of nearby schools. Once the user has selected a school,
the application indicates that the user must verify that he
attends that school before the user can access the
application's main function. The application displays a
button that reads "I'm a student verify now with
Facebook." Once the user selects this prompt, the
application analyzes the user's Facebook profile.
application then requires the user to complete a verification
test. The application presents a screen that indicates
"We are having trouble verifying" and presents
another button reading "Identify classmates in contacts
to prove I'm a student." If the user selects this
button, the application then notifies the user that it would
like to access his contacts. Once the user gives permission,
another prompt states: "To verify you are a student, you
must identify your classmates from the contacts." If the
user selects "OK", the application generates a list
of people titled "Student Verification." This list
contains a mixture of the user's contacts and others
unknown to the user. The user must select at least four
classmates from the list of contacts before the application
finishes verifying the user.
application then sends a text message to the selected
students. It does not tell the user that it is sending these
texts. The text message informs the recipients that they were
"picked" by an anonymous boy or girl and provides a
hyperlink to One's website. The link also directs the
recipient to One's Apple store page, where the recipient
can download the application.
alleges that he received one of these text messages in June
2016. Warciak states that he did not use the application
prior to receiving this message and that he did not provide
his phone number to One. Further, Warciak claims that users
of the application are not aware that the text messages are
being sent, nor have they authorized these text messages.
Warciak alleges that One never informs users that the
selected students will receive a text message, what the
content of the message will be, when the text message will be
sent, or what number the message will be sent from. Compl.
¶ 21. Warciak further alleges that One intentionally
fails to disclose this feature to the user and fails to
request permission from the user to send these messages.
Id. ¶ 22.
therefore claims that One's transmission of these text
messages to himself and others violates both the TCPA and the
ICFA. Warciak also alleges that One caused consumers actual
harm by sending these unauthorized text messages.
Id. ¶ 28. Specifically, Warciak claims that he
and others have suffered injuries including a violation of
statutory rights, the diminished value and utility of their
telephone equipment and subscription services, the value of
the time spent fielding unwanted text messages, the wear and
tear on their telephone equipment, the loss of battery life,
and the electricity costs required to recharge their phones.
Id. ¶ 29.
moved to dismiss both claims, arguing that it is not the
"initiator" of the text messages as required under
the TCPA and that Warciak has failed to state a claim under
considering a motion to dismiss for failure to state a claim,
the court must accept all well-pleaded allegations as true
and draw all reasonable inferences in favor of the plaintiff.
St. John v. Cach, LLC, 822 F.3d 388, 389 (7th Cir.
2016). A complaint must provide enough factual information to
state a claim to relief that is plausible on its face and
raise a right to relief that is above the speculative level.
Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d
732, 736 (7th Cir. 2014).
alleges that One's transmission of the text messages
violates section 227 of the TCPA. Compl. ¶¶ 42-49.
Section 227(b)(1)(A) prohibits an individual from making any
call, other than for emergency purposes or with the prior
consent of the called party, using an automatic telephone
dialing system. 47 U.S.C. § 227(b)(1)(A). Specifically,
the FCC's implementing rule states that "no person
or entity may initiate any telephone call to the
specified recipients." In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of
1991 (”FCC Order"), 30 F.C.C.R. 7961, 7978
(2015) (internal quotation marks omitted). The parties do not
dispute that a text message qualifies as a "call"
under the TCPA. Instead, One argues that the users- and not
One-initiated the text messages and therefore One cannot be
liable under the TCPA.
Supreme Court and the Seventh Circuit have yet to address the
question of who, for purposes of the TCPA, initiates a text
sent through a mobile application. In 2015, the Federal
Communications Commission (FCC) issued an order in which it
considered this issue and determined that the operator of a
mobile application can be- but is not always-the initiator of
invitations sent from the application. See generally FCC
Order, 30 F.C.C.R. 7961. Final orders issued by the FCC
are binding on this court under the Hobbs Act, 28 U.S.C.