In McKenna v. WhisperText, 2015 WL 5264750, at *1 (N.D.Cal., 2015), Judge Grewal dismissed Plaintiff’s TCPA class action because no TCPA was used. The facts were as follows:

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.

Judge Grewal found that user interface negated the use of any ATDS.

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.38 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.  and Sterk v. Path, Inc. 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.43 And while Sterk held that user actions such as “clicking prompts to upload their phone contacts” were not human intervention,  “[i]n 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.” 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.