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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
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