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McKenna v. WhisperText: Courts Confirm Importance Of Human Intervention

A critical issue under the Telephone Consumer Protection Act, TCPA, is the extent to which the statute applies to mobile text messaging platforms. As evident from its title, Congress intended that the TCPA would protect consumers from unsolicited telephone calls, as placed through automated telephone dialing systems (“ATDS”). As early as 2003, the FCC decided that text messages are “calls” under the TCPA, but has not yet addressed the corollary issue of when and whether a text messaging platform might be considered an ATDS.

Two recent decisions from the Northern District of California have now provided at least a partial answer. Remarkably, both decisions follow the FCC’s 2003 anfud 2012 orders expanding the definition of ATDS to include equipment that “autodials” numbers without human intervention from customer calling lists. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 15391, 15392 n.5 (2012), citing In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rec’d 14014, 14091-92 (2003). The two recent court decisions affirm the converse position: that is, when a text messaging platform requires human intervention to initiate text messages, the platform is not an ATDS.

In the first decision, McKenna v. WhisperText, No. 5:14-CV-00424-PSG, 2015 WL 428728 (N.D. Cal. Jan. 30, 2015), plaintiff alleged that WhisperText violated the TCPA by sending him an unsolicited text invite for its Whisper app. According to plaintiff, the Whisper app automatically solicited new users to send such text invites to contact numbers stored in the user’s smartphone. Upon the user’s consent, the app would upload those numbers to a database, and a third party would automatically disseminate text invites.

WhisperText moved to dismiss, arguing that the Whisper app was not an ATDS because sending texts through the app required “human intervention” – specifically, the user’s election to send text invites. The district court agreed. While accepting the prior FCC orders in this area, the district court found the claim could not meet the requirements under those orders that the texts be sent without human intervention.   The dispositive allegation, the court reasoned, was that defendants’ app “sends SMS invitations only at the user’s affirmative direction.” Defendants accordingly did not use an ATDS to send the text at issue.

The second decision reached a similar conclusion on a motion for summary judgment. In Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015), plaintiff claimed that he received unsolicited welcome texts from defendants’ GroupMe app in violation of the TCPA. The application allowed users to create a “group” whose members would automatically receive pre-programmed welcome texts. GroupMe moved for summary judgment, arguing in part that the app was not an ATDS, because the app sent messages only in response to user requests.

While the district court again accepted the FCC’s orders on the scope of an ATDS, it also found that the app was not an ATDS, because it required human intervention in form of the user adding mobile numbers to form the group. The court rejected as insufficient plaintiff’s argument that the welcome texts were sent automatically by the app, once the user provided mobile numbers of group members. The district court reasoned that the user’s provision of mobile numbers amounted to “human intervention,” sufficient to place the app outside the scope of the TCPA.

For companies innovating in the area of mobile text platforms, these decisions may prove a much-needed bright line for determining whether a mobile messaging platform might amount to an ATDS so as to come within the requirements of the TCPA. District courts have taken different views as to whether text platforms might ever fall within the definition of an autodialer. Multiple petitions on the scope of the ATDS definition under the TCPA are pending before the FCC.   On the horizon are expected appellate decisions and further FCC rulings on these topics.

In the meantime, however, the requirement of human intervention may provide a useful marker for identifying how a company might engage with mobile messaging platforms while staying outside of the scope of the TCPA’s restrictions.

©2018 Drinker Biddle & Reath LLP. All Rights Reserved


About this Author

Michael J. Stortz, Commercial Litigation Lawyer, Drinker Biddle

Michael Stortz is a partner in the firm’s Litigation Group and Communication Litigation Practice Group.  He has successfully defended companies against claims of unfair competition, false advertising, consumer fraud, breach of warranty, and product defect.  

Michael’s practice includes the defense of nationwide and regional litigation, including multidistrict and putative class action litigation, and on appeals arising out of such litigation.  He has tried such claims to successful conclusion in federal and state courts, as...

Matthew J. Adler, Commercial Litigation Attorney, Drinker Biddle, Law Firm

Matthew J. Adler is an associate in the firm’s Commercial Litigation Group. He joined the firm after working two years as a staff attorney for the Supreme Court of California.

Matthew earned his J.D., magna cum laude, from the University of San Francisco School of Law, where he was a staff member of the USF Law Review. While in law school, he served as a judicial extern for the Hon. Kathryn M. Werdegar, Associate Justice of the Supreme Court of California. He spent three years before law school as a paralegal working on products liability cases involving pharmaceuticals. Matthew received his Bachelor of Arts degree in psychology from the University of California, Berkeley.