In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine.

Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants WhisperText, LLC and WhisperText, Inc. (collectively, “WhisperText”) for making unsolicited “text message calls.”  In a motion to dismiss, WhisperText argues McKenna fails to sufficiently allege WhisperText made any call using an “automatic telephone dialing system,” a required element of McKenna’s claim.  WhisperText alternatively argues this lawsuit should be stayed to permit the Federal Communications Commission to consider and rule on several pending petitions for declaratory rulings seeking clarification of the TCPA’s contemporary definition of an ATDS.  McKenna opposes .  In a hearing on September 9, 2014, the court denied WhisperText’s motion to stay and granted WhisperText’s motion to dismiss with leave to amend within 14 days of this written order.  Around December 19, 2013, McKenna’s cell phone rang. He had received a “text call” 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:” McKenna was irritated to receive what he considered to be spam, and his cell phone bill may have increased as a result of receiving the message. The Whisper App enables users to anonymously share secrets, as well as to send text messages to contacts inviting them to join Whisper.  WhisperText asserts that, for a time, WhisperText allowed Android Whisper App users to send these invitations to contacts anonymously using a telephone number registered to WhisperText, such as the message McKenna received.

The District Court found that use of “long code” constituted use of an ATDS under the TCPA.

The TCPA provides that a person may not make a call to a cellular phone using an ATDS or an artificial prerecorded voice message without the recipient’s prior express consent.  An ATDS is “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.”   The TCPA does not require use of the system’s capacity to actually send the unlawful text messages, but merely the sending of messages from equipment with such a capacity.  At the same time, the claim that a defendant used an ATDS must be more than just conclusory.  The use of long code to transmit generic messages en masse has been found sufficient to allege the use of an ATDS under the federal pleading requirements. FN22 Further, messages need not be sent to completely random numbers; an automated system delivering text messages to an uploaded list of hundreds or thousands of predetermined numbers also has been considered an ATDS.  [FN22 See, e.g., Kramer v. Autobytel, 759 F.Supp.2d 1165, 1172 (N.D.Cal.2010) (alleging in the second amended complaint that the Autobytel automotive referral service engaged B2Mobile to conduct a text message marketing campaign; B2Mobile “acquires lists of consumer cell phone numbers from various third parties” and then “sends massive amounts of spam text message advertisements” to those numbers; and plaintiff received ten unrelated, unsolicited, generic messages from a short code); Kazemi v. Payless Shoesource Inc., Case No. 3:09–cv–5142–MHP, 2010 WL 963225, at *2 (N.D.Cal. Mar. 16, 2010) (dealing with a complaint that included factual allegations that plaintiffs received multiple unsolicited text messages); Abbas v. Selling Source, LLC, Case No. 09–cv–3413, 2009 WL 4884471, at *3 (N.D.Ill.Dec. 14, 2009) (same).]   . . .McKenna claims the facts in this case are not seriously in dispute, and that the details of the technology WhisperText used to send the text message at issue remain to be determined by discovery.  But McKenna’s amended complaint cites little more than the following basic facts: (1) his receipt of a message from a long-code number operated by WhisperText, and (2) the contents of the message.  This long-code number could just be a telephone number, and the generic message alone certainly does not satisfy McKenna’s pleading burden.  McKenna’s claims that WhisperText engaged in “mass transmission of wireless spam” that “were necessarily sent by a machine that had the capacity to store the numbers of the group members and the capacity to dial those numbers automatically”   are therefore insufficiently conclusory. McKenna suggests that “[i]n the event that the Court finds that Plaintiff’s claims are in any way insufficient under Fed.R.Civ.P. 8, Plaintiff respectfully requests leave to amend to add further detail or otherwise take such steps required to cure any defects found by this Court. Courts should ‘freely give leave [to amend] when justice so requires. ‘ “  The court agrees with McKenna and so gives McKenna leave to amend within 14 days.

The District Court found an insufficient basis to stay the case under the Primary Jurisdiction Doctrine.

WhisperText separately seeks to stay this case until the FCC considers two issues before it: “(1) whether the equipment used to send a message must have a current capacity to store or produce randomly or sequentially generated numbers, without further modification, to qualify as an ATDS under the TCPA; and (2) whether the provider of a software application ‘makes’ a call for purposes of the TCPA when a user sends a text message invitation that is processed through or facilitated by the software application.” WhisperText refers to four petitions submitted to the FCC seeking clarification on the use of an ATDS and “sender” in the context of group texting. The problem with the pending submissions is that it is entirely unclear whether the FCC will issue a ruling pertinent to this case, since it is not obliged to resolve those four issues.  and it is not “actively considering” the precise issue here.  Despite opportunities to do so, the FCC has not previously ruled on the issues posed by those cases, so there is little indication they will do so anytime soon.FN40 When the FCC has ruled on group texting applications in the recent past, it has not changed its definition of an ATDS. Therefore, though the FCC has comprehensive regulatory authority over the TCPA, and while uniform administration of the TCPA would be desirable, a stay here is not warranted.