Wednesday, December 09, 2015

WhisperText, Automated Telephone Dialing and the Telephone Consumer Protection Act

This post examines an opinion from the U.S. District Courtfor the Northern District of California:  McKenna v. WhisperText, 2015 WL 5264750 (2015).  The U.S. MagistrateJudge, as judges usually do, begins the opinion by outlining what it involves:
Defendants WhisperText, LLC, and WhisperText, Inc. operate an anonymous sharing service called Whisper. The idea is to allow users to share their ideas, hopes and fears without attribution. Like many services accessed primarily on mobile devices, the Whisper App allows users to select contacts and invite those contacts by SMS text to try Whisper for themselves.
At issue is whether Whisper's text invitations, as alleged, use an automated telephone dialing system (ATDS) in violation of the Telephone Consumer Protection Act (TCPA). Because the present complaint, like those complaints that preceded it, does not state any cognizable claim under the TCPA, WhisperText's motion to dismiss is GRANTED. Plaintiff Tony McKenna already has received leave to amend twice; any further leave to amend would be futile and is DENIED.
McKenna v. WhisperText, supra.  Under Rule15(a)(1)(a) of the Federal Rules of Civil Procedure, which govern practice in federal courts, a plaintiff (the person who brings the suit) can amend his/her/its “pleading once as a matter of course . . . within 21 days of filing” it with the court and serving it on the defendant(s).  After that, the plaintiff has to get the defendant(s)’ consent to amend the complaint and the “court’s leave” to do so.
The judge then takes up the substance of the case, explaining, initially, that the
Telephone Consumer Protection Act, 47U.S. Code § 227, makes it unlawful to `make any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service.’ 47 U.S. Code § 227(b)(1)(A)(iii). An ATDS is defined 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.’ 47 U.S. Code § 227(b)(1)(A)(iii). When Congress passed the TCPA, it directed the Federal Communications Commission to promulgate regulations to implement the Act's requirements. 47 U.S. Code 227(b)(2).  

In accordance with this mandate, the FCC has clarified that Section 227(a)(1)'s definition of an ATDS covers `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.’ The [U.S. Court of Appeals for the 9th Circuit] has held that text messages constitute calls under the TCPA, and the alleged use of `long codes’ to transmit generic messages en masse has been deemed sufficient to allege the use of an ATDS under the federal pleading requirements.
McKenna v. WhisperText, supra.  
The judge then outlines how, and why, this lawsuit arose:
Around December 19, 2013, McKenna's cell phone rang. He had received an SMS from `16502412157,’ a special purpose `long code’ telephone number operated by WhisperText and its agents. The message read: `Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets. Check out the app here:’  Soon afterward, McKenna filed this suit, alleging that WhisperText had violated his rights under the TCPA. McKenna proposes to represent a class of individuals that received such unsolicited Whisper invitations and seeks an injunction requiring WhisperText to `cease all wireless spam activities and an award of statutory damages to the class members, together with costs and reasonable attorneys' fees.’
McKenna v. WhisperText, supra.  The stories you can find here and here provide more information about the class action suit McKenna proposed.
The opinion goes on to explain that the Judge 
dismissed McKenna's first amended complaint for failure to allege plausible facts suggesting that the Whisper app used an ATDS sufficient to trigger TCPA liability. McKenna then amended his complaint to allege that WhisperText used equipment `that had the capacity at the time the calls were placed to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers,’ that is, an ATDS.

However, McKenna's third amended complaint and opposition made it clear that `the Whisper App [could] send SMS invitations only at the user's affirmative direction to recipients selected by the user.’ The court held that because WhisperText's equipment required human intervention, McKenna again failed to allege facts sufficient to show that WhisperText's equipment satisfied the statutory definition of an ATDS.

In his fourth amended complaint, McKenna removed all mention of the WhisperText customer's role in deciding to send invitations to contacts, and in selecting the invitation's recipients. McKenna now focuses on the processes by which WhisperText harvests the selected contacts' phone numbers from the customer's cell phone, uploads those numbers to a third party communications provider operating a platform for sending text messages and sends out the invitations to those numbers through the platform.

McKenna alleges that `the entire process’ of harvesting, uploading, and sending is `automated and performed without any human intervention’ by WhisperText and the third-party platform.  McKenna also adds allegations that the platform is regularly used to conduct `mass spamming events’ as part of `mobile growth hacking,’ where unscrupulous entities use the platform to send unsolicited invitational text messages.
WhisperText now moves to dismiss McKenna's fourth amended complaint with prejudice, arguing that further amendment would be futile.
McKenna v. WhisperText, supra.  
The Judge then began the substantive part of his opinion, explaining that the
court has jurisdiction under 28 U.S. Code § 1331. The parties consented to the jurisdiction of the undersigned magistrate judge under 28 U.S. Code § 636(c) and Federal Rules of Civil Procedure 72(a).

Rule 12(b)(6) of the Federal Rules ofCivil Procedure permits challenges to the legal sufficiency of the opposing party's pleadings. The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice.

However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. If a plaintiff fails to proffer `enough facts to state a claim to relief that is plausible on its face,’ the complaint may be dismissed for failure to state a claim upon which relief may be granted. A claim is facially plausible `when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged’ `Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.’
McKenna v. WhisperText, supra.  
The judge then began his analysis of the parties’ arguments, noting that there is
`nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive pleadings that make inconsistent or even contradictory allegations.’ However, when evaluating an amended complaint, `[t]he court may also consider the prior allegations as part of its “context-specific” inquiry based on its judicial experience and common sense to assess whether” an amended complaint “plausibly suggests an entitlement to relief.’ Applying these standards against McKenna's amended claim, the claim fails as follows.
McKenna v. WhisperText, supra.  He goes on to apply the standards to his claim:
First, McKenna again fails to state a claim that WhisperText used an ATDS to send him an unwanted message. As the court held in its previous order, McKenna's statements that the Whisper App sends text invitations only at the user's affirmative direction foreclose any plausibility that WhisperText sends messages using an ATDS, without human intervention. Perhaps in response, the fourth amended complaint strives mightily to direct attention to WhisperText's automated processes, and discusses them as if they were completely detached from any user direction. Nonetheless, it neither denies nor contradicts McKenna's earlier allegations regarding the user's role.

Therefore, while this court accepts as plausible the allegations that WhisperText uses automated processes to harvest phone numbers from a Whisper App user's phone and upload them to a third-party platform, and that the platform uses automated processes to send invitational messages to those numbers, it is undeniable from McKenna's previous allegations that the human intervention of a Whisper App user is necessary to set those processes in motion. In light of the need for human intervention, McKenna's allegations that WhisperText and assorted non-party companies use a third-party platform are irrelevant.

Since the court's previous dismissal order, this district again has held that where an application sends SMS invitations only at the user's affirmative direction, the action taken is with human intervention, meaning that the equipment at issue is not an ATDS. In Glauser v. GroupMe, Inc., the application GroupMe sent out invitational `Welcome Texts’ to selected recipients after obtaining their phone numbers through a GroupMe user's actions. Like McKenna, Glauser argued that once the GroupMe user selected phone numbers for GroupMe to message, the `”entire process was automated,’ and ‘[n]o human intervention was needed or involved.”’ The court rejected this argument, finding `no basis for plaintiff's argument that the Welcome Texts were sent without human intervention.’

McKenna cites to Harnish v. Frankly Co., 2015 WL 1064442 (U.S. District Court for the Northern District of California 2015) and Sterk v. Path, Inc., 46 F.Supp.3d 813 (U.S. District Court for the Northern District of Illinois 2014), to support his argument that his claims regarding WhisperText's automated processes sufficiently allege a valid TCPA claim. But in Harnish the complaint did not allege any actions by the Frankly App's users, and alleged only the actions taken by Frankly Co.'s automated processes.  And while Sterk held that user actions such as `clicking prompts to upload their phone contacts’ were not human intervention,’ `in Sterk the Path system determined which number to call or text (from the user-provided list of numbers), [and] when to call. . . .Here, the . . . user has control over each of these variables.’
McKenna v. WhisperText, supra.  
He went on to explain that,
Second, the FCC recently found that an application that required human intervention to send invitational messages was not the `maker or initiator’ of the calls for TCPA purposes. The TCPA prohibits the making of calls to a cellular phone number using an ATDS without the recipient's prior express consent, and the FCC's implementing regulations state that no person may `initiate’ a call to a cellular phone using an ATDS without prior express consent. While passing judgment on TextMe, a messaging application, the FCC provided generally applicable guidelines for deciding whether an application or its user was the maker or initiator of a call.

TextMe sends invitational messages when a user makes the `affirmative choices’ to (1) tap a button reading `invite your friends’; (2) choose whether to invite all or some contacts; and (3) press another button to send the invitational text message. The FCC concluded that, taking `into account the goals and purposes of the TCPA,’ the `app user's actions and choices effectively program[med] the cloud-based dialer to such an extent that he or she is so involved in the making of the call as to be deemed the initiator of the call.’ Accordingly, even though WhisperText uses automated processes to harvest and upload a user's selected phone numbers and then send invitational messages, that is insufficient to make WhisperText the maker or initiator of a call using an ATDS under the TCPA.
McKenna v. WhisperText, supra.  
The judge, therefore, held that
WhisperText's motion to dismiss is GRANTED. Because McKenna has twice received leave to amend, and because it is clear the complaint cannot be saved by amendment, given McKenna's prior allegations about the need for human intervention, leave to amend is DENIED. A separate judgment will issue.
McKenna v. WhisperText, supra.  

You can, if you are interested, read more about the outcome in the stories you can find here and here.

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