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McKenna v. Whispertext

United States District Court, N.D. California, San Jose Division

January 30, 2015

TONY MCKENNA, Plaintiff,
v.
WHISPERTEXT et al., Defendants.

ORDER GRANTING MOTION TO DISMISS (Re: Docket No. 52)

PAUL S. GREWAL, Magistrate Judge.

A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from "XXXXXXXXXXX."[1] The text was an invitation to download the Whisper app from Defendants WhisperText, LLC and WhisperText, Inc. (collectively, "WhisperText"). Irritated to have received what he considered little more than spam for which he might be charged by his cellular service provider, McKenna filed this suit.[2] McKenna alleges that WhisperText violated his rights under the Telephone Consumer Protection Act, and he seeks to represent a class of those similarly irritated. McKenna failed to state a plausible claim in his first amended complaint; the court dismissed it with leave to amend further.[3] WhisperText again moves to dismiss.[4] Once again, McKenna has not sufficiently stated his claim, and so the court GRANTS the motion.

I.

Enacted in 1991, well before mobile computing and text messaging took hold, the TCPA was a response by Congress to consumer complaints about unwanted phone calls and junk faxes. To that end, the TCPA makes it unlawful to "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system... to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call."[5]

As relevant here, an automatic telephone dialing system ("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."[6] The Ninth Circuit has since found that text messages constitute calls under the TCPA, [7] and the alleged use of "long codes" to transmit generic messages en masse has been found sufficient to allege the use of an ATDS under the federal pleading requirements.[8] 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.[9]

Whenever a new user downloads the Whisper app from WhisperText, the message "Whisper will text your friends for you" appears on the screen automatically.[10] The new user then has the opportunity to invite all contacts.[11] Contacts are then uploaded to a database and routed through a third party that generates and sends automated text messages.[12] McKenna himself received an impersonal, unsolicited text message from a long code registered to WhisperText in December 2013.[13]

Shortly thereafter, McKenna filed this suit.[14] He alleges that the unsolicited and unauthorized commercial text calls he received were made by WhisperText in violation of his rights under 42 U.S.C § 227. Specifically, he alleges 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. He further alleges that these text calls were made en masse to all class members through the use of an automated system whereby the messages were sent without human intervention from a long code registered to WhisperText without any class member's prior express consent. Among his remedies, McKenna seeks class certification, actual and statutory damages, an injunction barring WhisperText from "all wireless spam activities, " and reasonable fees and costs.

After McKenna amended his initial complaint, the court declined WhisperText's request to stay the case while the FCC considers what qualifies as an ATDS and what it means for a software provider to "make" a call. But the court agreed with WhisperText that the first amended complaint failed to allege plausible facts suggesting that the Whisper app uses an ATDS sufficient to trigger TCPA liability. The court then dismissed the first amended complaint but with leave to amend.[15] WhisperText now move to dismiss McKenna's third amended complaint with prejudice, arguing that further amendment would be futile.[16] McKenna opposes and alternatively requests leave to amend his complaint again.[17]

II.

The court has jurisdiction under 28 U.S.C. § 1331. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).[18]

III.

To survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."[19] When 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.[20] 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."[21] Under Rule 12(b)(6), "dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."[22] Dismissal without leave to amend is appropriate if it is clear the complaint could not be saved by amendment.[23]

To state a TCPA claim, McKenna must sufficiently allege the use of an ATDS. Of the components of the statutory definition of an ATDS-"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"[24] -both parties agree the latter is satisfied. The Whisper app can dial and has dialed numbers. Where the parties disagree is whether McKenna has sufficiently pleaded that Whisper's equipment has the capacity to store or produce telephone numbers to be called using a random or sequential number generator. McKenna again fails to clear that hurdle.

McKenna leans hard on a 2003 FCC order that found a so-called "predictive dialer" can qualify as an ATDS because Section 227(a)(1) 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."[25] Even though McKenna concedes that he does not allege that WhisperText used such a predictive dialer, this district has held that the FCC order encompasses more than just the predicative dialer then before it. For example, Judge Chhabria held recently that the FCC's order should be read as "encompass[ing] any equipment that stores telephone numbers in a database and dials them without human intervention."[26] Similarly, Judge Alsup held that contemporary equipment which functions similarly to a predictive dialer is subject to the FCC's 2003 order even if it is not ...


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