Following a growing precedent in the California federal district courts, a judge recently concluded that a defendant in a Telephone Consumer Protection Act case did not impermissibly use an automated telephone dialing system (ATDS) because human intervention was involved.
In 2013, Paul McKenna received an unsolicited text from WhisperText to download the company’s Whisper mobile app. He sued the company for violating the TCPA, and the company moved to dismiss.
Users who sign up for Whisper are given the option to upload the numbers stored in their contact list with a “Whisper will text your friends for you” message. According to the company, a user must affirmatively choose to provide his or her contacts. Only then will the company send an invitation by text.
Section 227b(1)(A)(iii) of the TCPA defines an ATDS as any “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.” McKenna relied upon a 2003 Federal Communications Commission order (In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991) which explained that an ATDS under Section 227 includes “any equipment” with the capacity to “generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.”
But Whisper did not use an ATDS to send its invite to McKenna, the defendant argued, because human intervention in the form of a user’s decision to provide his contacts was necessary before the invitation by text was sent.
U.S. District Court Judge Paul S. Grewal agreed, citing two similar Ninth Circuit decisions—a Washington case involving a computerized taxi dispatch system and a Southern District of California case against a gym.
“McKenna’s affirmative allegations of the need for human intervention by a Whisper App user when sending an SMS invitation preclude the need for discovery to address whether McKenna has alleged the use of an ATDS,” the court wrote.
The judge also rejected the plaintiff’s contention that because an auto-reply message was received when a recipient of the original invite message responded to the company, an ATDS system was involved. “But McKenna fails to show how his generic ‘auto-reply’ allegation is relevant to whether McKenna himself can state a claim for relief,” the court said.
Lacking a viable claim for individual relief, the court dismissed the complaint for a second time. Judge Grewal did grant the plaintiff leave to amend once more, however.
To read the order in McKenna v. WhisperText, click here.
Why it matters: The court’s dismissal of the suit reiterates the importance of what constitutes an ATDS under the TCPA. Whether disputing “present capacity” versus “potential capacity” or whether human intervention was involved in the defendant’s actions, TCPA defendants should pay close attention to the continuing line of ATDS cases.