Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

Data Counsel

Home | Data Counsel

<img class="alignright wp-image-4160 size-medium" src="http://dataprivacymonitor.bakerhostetlerblogs.com/wp-content/uploads/sites/5/2015/07/phone-183992313-300x200.jpg" alt="phone 183992313" width="300" height="200" />Last week, in McKenna v. WhisperText et al., No. 5:14-CV-00424-PSG, 2015 WL 428728 (N.D. Cal. Sept. 9, 2015), the U.S. District Court for the Northern District of California dismissed a purported Telephone Consumer Protection Act (“TCPA”) class action on grounds that the plaintiff failed to allege that the defendant used an Automatic Telephone Dialing System (“ATDS”). The ruling is one of the first to consider the human intervention issue following the issuance of the FCC’s July 2015 omnibus TCPA order (“2015 Order”), which we previously discussed <a href="https://www.dataprivacymonitor.com/enforcement/dont-call-us-well-call-you-the-fccs-latest-tcpa-ruling-imposes-even-more-restrictions-on-telemarketing-calls-and-texts/">here</a>.

Under the TCPA, it is “unlawful for any person … (A) to make [or initiate] any call … using [an ATDS] … to any telephone number assigned to a … cellular telephone service” without prior express permission. 47 U.S.C. § 227(b)(1). An ATDS is defined as “equipment which has the capacity–(A) to store or produce telephone numbers to be called using a random or sequential number generator; and (B) to dial such numbers.” Id. at § 227(a)(1). The FCC has interpreted calls to include text messages and that an ATDS must have the capacity to dial numbers without human intervention. The 2015 Order rejected any formal test for establishing human intervention and rather advocated that courts evaluate human intervention on a case-by-case basis. The 2015 Order also clarified that the maker or initiator of a text message may be a third party and that courts should consider the totality of the circumstances to determine: (1) who took the steps necessary to physically place the text; and (2) whether another person or entity was so involved in placing the text as to be deemed to have made it, considering the goals and purposes of the TCPA.

In WhisperText, the defendant operated a social media service through which users could upload and anonymously share their thoughts, stories, and feelings. Mobile users of the service could invite their contacts via text message to try the service. The plaintiff allegedly received one such text message, which read, “Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets. Check out the app here: <a href="http://bit.ly.hlvr79/">http://bit.ly.HLVr79</a>.” The plaintiff argued that the defendant’s equipment constituted an ATDS because, among other things, it harvested the select contacts’ phone numbers from the customer’s cell phone, uploaded those numbers to a communications provider operating platform for sending text messages, and sent out the invitations to those numbers through the platform.

The District Court rejected the plaintiff’s ATDS argument on the basis that the defendant sent the text messages only at a user’s affirmative direction, to recipients selected by the user. The District Court stated that where an application sends text messages only at a user’s affirmative direction, the action is taken with human intervention and the equipment used is not an ATDS. Applying the 2015 Order, the District Court further found that the defendant was not the maker or initiator of the text messages.

WhisperText is notable for several reasons. Despite being issued after the 2015 Order, the WhisperText ruling continues the string of case law from before the 2015 Order dismissing proposed TCPA class actions where the application users, rather than the application operators, directed text messages to their contacts. See Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111, at *1 (N.D. Cal. Feb. 4, 2015) (finding that human intervention was needed to send text messages where GroupMe application users selected phone numbers for GroupMe to text message). As WhisperText is one of the first cases to analyze human intervention following the 2015 Order, WhisperText demonstrates that courts may continue to evaluate human intervention in a similar manner as they did before the 2015 Order. Further, WhisperText is one of the first cases to specifically follow the 2015 Order’s guidance on liability stemming from the maker or initiator of a text message. We will continue to monitor and report on these important decisions limiting TCPA liability for invitation platforms.

Court Dismisses TCPA Claim Against WhisperText Where Text Messages Sent at App Users’ Direction