Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
Sept. 9 — Harvesting and uploading phone numbers from a user's mobile phone only after the user took steps to invite friends to download an application didn't use an automated telephone dialing system (ATDS), the U.S. District Court for the Northern District of California held Sept. 9.
Judge Paul S. Grewal said the phone user's activities constituted a human intervention that resulted in the mobile app not being the maker or initiator of a phone call.
The decision accords with a recent line of decisions saying that app users taking actions to initiate messages to the contacts in their own phones remove the resulting text messages from Telephone Consumer Protection Act protection.
The TCPA, 47 U.S.C. 227, provides a cause of action for recipients of unsolicited phone calls, including text messages, made to mobile devices using an ATDS and dialed without human intervention.
Plaintiff Tony McKenna received a single text message reading: “Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets. Check out the app here:” and including a hyperlink. Defendant WhisperText operates the Whisper app, and a user of that app chose McKenna as one of the recipients of the offending text message.
McKenna brought TCPA claims against WhisperText. The allegations in his third amended complaint described the process of a user initiating text messages to their contacts. After that claim was dismissed, McKenna repleaded his claim, dropping allegations of user initiation and instead focusing on WhisperText harvesting numbers from mobile phones, uploading them to a third party text messaging platform and automatically sending out messages through that platform.
Nonetheless, the court said, McKenna didn't contradict his earlier allegations regarding user intervention. The court relied on Glauser v. GroupMe Inc., 2015 BL 29950 (N.D. Cal. 2015), finding human intervention on very similar facts regarding a mobile phone user initiating messages to their contacts via an app. The Federal Communications Commission also ruled July 10 that an app relying on human intervention to initiate text messages wasn't the “maker or initiator” of a phone call under the TCPA.
Finding any further leave to amend futile, the court dismissed McKenna's claim with prejudice.
Parisi & Havens LLP and McGuire Law PC represented McKenna. Fenwick & West LLP represented WhisperText.
Full text of the opinion available at: http://www.bloomberglaw.com/public/document/McKenna_v_WhisperText_LLC_Docket_No_514cv00424_ND_Cal_Jan_28_2014
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)