Refer-a-Friend Texts and the TCPA: When Your Business Is the Sender

A customer taps Invite friends in your app, picks three contacts, and hits send. Under the Telephone Consumer Protection Act, the person who “makes” a call is directly liable for it, and in the invite-text cases, courts have usually found that’s the customer, not the business. That can flip when the app sends without the customer’s real choice or hides that anything is being sent. A company sued over referral texts often has a strong defense, if its records show who made each choice.

Who “makes” a referral text under the TCPA?

Usually whoever chose to send it, to whom, and when, though the FCC looks at all the circumstances, including who controls the content. The statute makes it unlawful “to make any call” to a cell phone using an autodialer or an artificial or prerecorded voice, unless the call is made for emergency purposes or with the called party’s prior express consent, under 47 U.S.C. § 227(b)(1)(A), and the FCC applies that consent rule to texts (FCC 15-72 ¶ 27). The statute doesn’t say who “makes” a call.

The FCC took up that question in its 2015 Omnibus Declaratory Ruling and Order (FCC 15-72). In the part on who makes a call, it ruled on petitions from three app companies. The order states (¶ 30) that the FCC will “look 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.”

YouMail let its users set up auto-reply texts to people who left them voicemail. The FCC found YouMail was not the sender because it “does not control the recipients, timing, or content” of the replies (¶ 33).

Glide was a video-messaging app. The FCC found that in at least one scenario Glide was the sender, where “Glide 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” (¶ 35).

TextMe wrote the invite message itself, but its users had to tap “invite your friends,” choose whether to invite all their friends or pick contacts, and tap send (¶ 36). The FCC concluded: “These affirmative choices by the app user lead us to conclude that the app user and not TextMe is the maker of the invitational text message” (¶ 37). The FCC also warned that “to the extent that TextMe controls the content of the message and the content of the message is telemarketing or a commercial advertisement for the TextMe app, TextMe may be liable for the calls” (¶ 37).

In 2018 the D.C. Circuit set aside the order’s autodialer and reassigned-number rulings and upheld its revocation and health care rulings in ACA International v. FCC. The app rulings weren’t challenged in that case.

How have courts applied the TextMe and Glide rulings to invite flows?

Mostly in favor of the business. Several wins came on motions to dismiss, decided on the plaintiff’s own description of the flow. Two came on summary judgment, where the business proved how its flow worked.

In Huricks v. Shopkick, Inc., a federal court in San Francisco granted summary judgment to a shopping app whose users granted contact access, chose “Continue,” selected contacts, and pressed “Invite Friends.” The court found those steps “indistinguishable in all material respects from the steps a user of the TextMe app must take.” The plaintiffs argued that their texts, which offered them 50 bonus points, were ads unlike TextMe’s, and the Huricks court found “there is no material difference between an offer of free texts and an offer of free shopping points.”

In Cour v. Life360, Inc., another judge of the same federal court dismissed a claim against a location-sharing app that, according to the complaint, pre-checked “Recommended” contacts. The court called that difference “immaterial” because users could uncheck everyone and nothing went out until they pressed “Invite.” The Cour court also held that it didn’t matter whether the app told users the invite would go by text, because “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.”

A San Diego federal court reached the same result for an “Invite All” button in Reichman v. Poshmark, Inc., granting early summary judgment after it had refused to decide the question on the pleadings. A Chicago federal court dismissed the TCPA claim in Warciak v. Nikil, Inc., where the complaint alleged that users earned 50 points for each friend who joined. The court didn’t discuss the reward. It concluded that “Nikil supplied the means for the user to initiate a text message.” And in Wright v. Lyft, Inc., a Seattle federal court dismissed the TCPA claim over a “free Lyft ride worth $25” referral text.

Warciak v. One, Inc. shows where the edge is. The complaint alleged that a student app texted classmates the user picked during a “Student Verification” step that never mentioned an invitation. Another Chicago judge refused to dismiss the TCPA count, reasoning that “The users cannot be the initiators of these text messages for purposes of the TCPA if, as Warciak has alleged, the users were unaware that their actions would result in invitations.”

Every TCPA claim in these cases was brought under the autodialer provision. That claim has narrowed sharply since 2021, as we explained in our post on autodialer claims after Duguid.

Which design choices keep the customer as the sender?

The ones that leave a record of the customer deciding.

The strongest flow has an invite button the user has to find, a contact picker that starts empty or lets the user clear it in one tap, a preview of the exact message, and a send button. Editable message text helps, since the FCC treated an app’s control of content as a “reason for concern” (FCC 15-72 ¶ 37).

Pre-checked contacts held up for the business in Cour, on the complaint’s allegations and the plaintiff’s concession that users could uncheck everyone, and an Invite All button held up on summary judgment in Reichman. Both rest on the same point: the user had to act before anything went out. I’d still let users see and change the list. The FCC’s Glide finding turned on “little or no obvious control by the user” (¶ 35), and one district court’s decision doesn’t bind another.

Can follow-up or reminder texts make the business the sender?

They can, and this is where I see the most avoidable risk. A customer who taps invite decides one message, to the people they picked, at that moment. If the system then texts that friend again three days later to say the sign-up credit is about to expire, the customer didn’t choose to send that second message or when it went out. That gives a plaintiff a stronger argument that the business made the reminder, even though no decision we’ve discussed has ruled on one.

In its YouMail ruling, the FCC concluded the app wasn’t the sender because it didn’t control “the recipients, timing, or content.” An automated reminder still reaches someone the customer picked, but the business now controls its timing and its content. My advice is simple: one customer tap, one text. If you want a second touch, send it to the customer, who can decide whether to forward it.

A business-written reminder can also raise Do Not Call issues if it’s a sales message. The FCC’s rules provide that no person or entity shall “initiate any telephone solicitation” to a residential subscriber whose number is on the National Do Not Call Registry, the federal list of consumers who’ve opted out of telemarketing, and they apply that rule to wireless numbers under 47 C.F.R. § 64.1200(c)(2), (e), and (f)(15). A telephone solicitation is a call or message “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” and the definition excludes messages sent with the person’s prior express invitation or permission or to someone with an established business relationship. For a Registry number, that permission must be shown by a signed, written agreement with the seller. The private claim belongs to someone who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of those rules, under § 227(c)(5). A plaintiff may argue that the original invite was sent “on behalf of” the business and count it with the reminder. None of the invite-text decisions above addressed that question, because they were autodialer cases. It’s one more reason to keep automated reminders out of a referral flow.

If an invited friend replies STOP, that number should go on your internal suppression list, a topic covered in our post on internal do-not-call policies.

What does McLaughlin mean for referral programs?

It means a district court hearing a private lawsuit isn’t bound by the FCC’s app rulings, though it must give them appropriate respect. On June 20, 2025, the Supreme Court decided McLaughlin Chiropractic Associates v. McKesson Corp., explaining that “District courts are not bound by the agency’s interpretation, but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.”

Huricks deferred to the 2015 order, Reichman relied on it as a reasonable reading of the statute, and both Warciak courts treated it as binding under the Hobbs Act. Going forward, a court can decide for itself what “make” means.

I don’t think that changes the practical test much. Cour also relied on the privacy interest the TCPA protects, and I expect any court to ask who chose to send the message. A court can still adopt the FCC’s reading. The difference is that a business should be ready to explain why its customer made the call under the statute’s ordinary meaning, not only that its flow matches TextMe’s.

Can state law reach the business even when the customer sends the text?

In Washington, it can. Washington’s Commercial Electronic Mail Act reaches more than the sender. It provides that “No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message” to a cell phone number assigned to a Washington resident, under RCW 19.190.060. The definitions add conditions. As the Moore court explained, assisting means providing “substantial assistance or support,” and the assister must know or consciously avoid knowing that the sender is engaged, or intends to engage, in a practice that violates Washington’s Consumer Protection Act. The message must also promote real property, goods, or services for sale or lease. And there’s no violation if the recipient “has clearly and affirmatively consented in advance to receive these text messages,” under RCW 19.190.070.

That “assist” language kept the Lyft case alive after its TCPA claim failed. The Wright court, in the same order that dismissed the TCPA count, wrote that “Unlike the TCPA, it makes no difference if some other party” initiated the text. A later case against Robinhood brought only Washington claims. In Moore v. Robinhood Financial LLC, the plaintiffs alleged that users sent referral texts from their own phones’ messaging apps. The court still denied dismissal, finding the complaint alleged that the app “prompts users to refer contacts with the promise of free stocks, pre-composes the messages.” The complaint also alleged in-app alerts reminding users to invite friends.

Both cases ended in class settlements covering Washington residents who received the referral texts: Lyft’s final approval came on May 29, 2019, and Robinhood’s on July 16, 2024. A settlement is not an admission of liability. A company whose customers can invite people with Washington numbers should review its referral program under Washington law, not only the TCPA.

When a referral-text claim arrives

1. Put a litigation hold on the invite logs, platform message data, and consent records for the numbers involved, and save dated screenshots of the invite flow as it existed when each text went out.
2. Pull the opt-out history for each number, including STOP replies from invited friends and the date each number was suppressed.
3. Pull your Do Not Call Registry scrub records and the version dates used for any reminder or follow-up messages.
4. Collect the SMS vendor contracts, the message templates and their change history, and the reward terms in effect.
5. Talk to a lawyer before you answer the demand letter, contact the person who received the text, or offer anything to settle.

The firm’s TCPA defense lawyers page summarizes how claims involving referral and app-invite texts are defended.

Questions businesses ask about referral and invite texts

Does paying a referral reward make our company the sender?

Not in the decisions so far. In Huricks and Wright v. Lyft, the texts themselves offered the recipient bonus points or a free ride, and the TCPA claims still failed. In Warciak v. Nikil, the complaint alleged that users earned points for each friend who joined, and the court dismissed the TCPA claim on those allegations without discussing the reward. Rewards matter more under Washington law, where the Moore court counted the promise of free stock among the features supporting a claim. Keep the customer’s choices visible.

Can our customer consent on behalf of the friend they invite?

Generally, no. The FCC said in 2015 that a number’s presence in a phone’s contact list, “standing alone, does not demonstrate that the person whose number is so listed has granted prior express consent as required by the TCPA” (¶ 52). It also said an intermediary can pass along only consent the person actually gave (¶ 49). The invited friend usually has never dealt with your company, so a flow that makes the customer the sender is far safer footing.

Does it matter whether our app sends the text or the customer’s phone does?

It helps under the TCPA, since the customer physically sends a text from their own messaging app. It doesn’t settle state law, though. The Moore plaintiffs alleged that the referral texts went out from users’ own phones, and the Washington claim still survived a motion to dismiss because the complaint alleged the company prompted and pre-wrote them.

If your company is sued over referral texts

If your company faces a lawsuit or demand letter over texts sent through a refer-a-friend feature, the invite-flow screenshots and logs from the day each text went out often decide who the sender was. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving referral and app-invite texts. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR through June 22, 2025. The FCC’s app rulings are in Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72, 30 FCC Rcd 7961 (2015), ¶¶ 25 to 37. Washington’s statute is at RCW 19.190.060 and RCW 19.190.070.

The court decisions are McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., No. 23-1226 (U.S. June 20, 2025); ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018); Huricks v. Shopkick, Inc., No. C-14-2464 MMC (N.D. Cal. Aug. 24, 2015); Cour v. Life360, Inc., No. 16-cv-00805-TEH (N.D. Cal. July 28, 2016); Reichman v. Poshmark, Inc., No. 16-cv-2359 DMS (JLB) (S.D. Cal. May 15, 2017), after the earlier order at 267 F. Supp. 3d 1278 (S.D. Cal. 2017); Warciak v. One, Inc., No. 16 C 7426 (N.D. Ill. Dec. 20, 2016); Warciak v. Nikil, Inc., No. 16 C 5731 (N.D. Ill. Mar. 23, 2017); Wright v. Lyft, Inc., No. 2:14-cv-00421-MJP (W.D. Wash. Apr. 15, 2016), with the final approval order (May 29, 2019); and Moore v. Robinhood Financial LLC, No. 2:21-cv-01571-BJR (W.D. Wash. Aug. 3, 2022), with the final approval order (July 16, 2024).

This post is general information about the Telephone Consumer Protection Act and related laws as of June 22, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.