App Provider Prevails in Drawn-Out TCPA Lawsuit

September 11, 2015

tcpa-lawsuitThis summer, we reported on a court order issued in the Telephone Consumer Protection Act (“TCPA”) lawsuit encaptioned McKenna v. WhisperText. The order granted defendant mobile application provider WhisperText’s motion to dismiss, but allowed the plaintiff leave to amend his complaint. Last Wednesday, the U.S. District Court in San Jose, California dismissed the case with prejudice and entered judgment in favor of the defendant.

How did the app provider ultimately avoid TCPA liability?

WhisperText’s Whisper App

WhisperText is the developer and provider of the social networking app Whisper, which allows users to anonymously share photos and messages that are “too intimate to share on traditional social networks.” When new users download Whisper, they are purportedly given the opportunity to invite their contacts to download the app as well. According to court records, invitees then receive an impersonal, unsolicited text message from a ten-digit phone number registered to WhisperText.

In 2013, Tony McKenna allegedly received the following invitation text message from WhisperText: “Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets. Check out the app here:” In January 2014, McKenna initiated a class action TCPA lawsuit against WhisperText in connection with the unsolicited invitation, seeking a court-ordered injunction and an award of statutory damages against the app provider, together with costs and attorneys’ fees.

App Provider Overcomes TCPA Lawsuit

Despite the Federal Communications Commission’s (“FCC”) broad and expansive definition of an “autodialer,” a number of federal courts have held that human intervention on the part of the sender of a text message can remove a claim from the scope of the TCPA. In January 2015, noting that McKenna’s lawsuit contained affirmative allegations of the need for human intervention by Whisper app users when sending text message invitations, the Court dismissed the TCPA lawsuit. Although McKenna had already filed three complaints in connection with the matter, the Court granted him leave to file a fourth amended complaint to cure its defects.

Last Wednesday, the federal court once again found that McKenna’s TCPA lawsuit “fails to state a claim that WhisperText used an [autodialer] to send him an unwanted message.” Citing the recent GroupMe decision, the Court observed 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 [autodialer].”

The Court also referred to the FCC’s recent ruling and newly created TCPA exemption for certain app providers. In addition to its determination that WhisperText did not use an autodialer, the Court ruled that WhisperText was not the maker or initiator of the subject text message under the new FCC exemption.

Does Your App Send Text Messages? Make Sure They Are TCPA-Compliant

Despite WhisperText’s ultimate victory in the case described above, the dispute dragged on for over a year and a half. While the FCC’s new exemption and certain interpretations of the TCPA autodialer definition provide additional protections for app providers, obtaining the prior express written consent of app users before sending text messages undoubtedly remains the safest route for operators in this space. App providers should ensure that their mobile applications are in full compliance with the TCPA and its implementing regulations in order to minimize the risk of substantial liability.

If you are interested in learning more about this topic, or need to review your telemarketing practices, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Related Blog Posts:

Human Intervention Defeats TCPA ATDS Claim

FCC Exempts Certain App Providers from TCPA Initiator Regulation

Another Court Weighs in on TCPA Definition of Autodialer


David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.
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