Human Intervention Defeats TCPA ATDS Claim

While federal courts throughout the country continue to struggle with the question of what constitutes an automatic telephone dialing system ("ATDS") within the meaning of the Telephone Consumer Protection Act ("TCPA"), one federal court has recently provided clarity. In McKenna v. Whispertext, the United States District Court for the Northern District of California dismissed a putative TCPA class action lawsuit on the grounds that the plaintiff had failed to allege that the defendant in fact used an ATDS. The plaintiff relied heavily on a ruling by the Federal Communications Commission ("FCC") that had provided a broad definition of ATDS. The Court concluded, however, that even under the FCC's broad definition of an ATDS, human intervention on the part of the sender can remove a claim from the scope of the TCPA.