• by Wendy Davis  @wendyndavis, July 2, 2014

The mobile social network Path wants to immediately appeal a recent decision allowing consumers to proceed with a lawsuit accusing it of sending unsolicited text-message ads.

The company said in recent court papers that “prompt appellate guidance” is needed in order to determine whether it potentially violated the Telephone Consumer Protection Act, which prohibits companies from using automated dialers to send SMS ads without the recipients' permission.

The lawsuit against Path dates to 2013, when Illinois resident Kevin Sterk alleged in court papers that he company texted him the message that another person -- Path user Elizabeth Howell -- wanted to show him photos on the service. The message also contained a link to a site where Sterk could register to join Path.

Path asked U.S. District Court Judge Samuel Der-Yeghiayan in the Northern District of Illinois to dismiss the lawsuit on the ground that its system doesn't use “automated dialers.” The company said its system only sends SMS messages to people whose phone numbers were provided by users. Path contended that “human intervention” -- its users' uploading of their friends' numbers -- means its system isn't an automated dialer.

Der-Yeghiayan ruled against Path, stating that the company used an automated dialer to reach people like Sterk, regardless of whether their mobile numbers were uploaded by their friends.

Path now is asking Der-Yeghiayan for permission to immediately appeal that decision to the 7th Circuit Court of Appeals. “The court’s order warrants certification for immediate appeal,” Path says in its motion. “This is a critically important issue that potentially affects every person and every company that makes calls to cell phones or sends text messages.”

Path also points out that other judges have come to different conclusions about the definition of automated dialers. For instance, Yahoo recently convinced a trial judge to dismiss a lawsuit accusing the company of sending SMS messages to the wrong person. Yahoo successfully argued in that case that its SMS-sending system didn't
rely on automated dialers. The consumer who sued is now appealing to the 3rd Circuit Court of Appeals.

“Given the importance of this issue and the division of district court decisions, the question of what constitutes an [automated dialer] is precisely the type of legal issue that warrants prompt appellate guidance,” Path says.

Sterk opposes that request. “Path is simply unhappy with having lost on summary judgment, and now seeks to delay the inevitable continuation of litigation before this court,” he says in papers filed this week.

"Spam" photo from Shutterstock.