COMMUNICATIONS AND MEDIA LAW

Telephone Consumer Protection Act • Automatic Telephone Dialing System

Dominguez v. Yahoo, Inc., PICS Case No. 14-0413 (E.D. Pa. March 20, 2014) Baylson, J. (12 pages).

Plaintiff purchased a cell phone, was assigned a phone number and later filed a class action suit against Yahoo alleging violations of the TCPA and challenging Yahoo’s practice of sending unsolicited text messages to cell phones owned by individuals who never consented to receive such text messages. Yahoo filed a motion for summary judgment asserting that the TCPA prohibits unsolicited automated telemarketing and bulk communications sent via an ATDS and that Yahoo’s system is not an ATDS. Granted.

Plaintiff purchased a cell phone and was assigned a number that had previously been assigned to another customer who had enrolled the number in Yahoo’s text messaging system. Plaintiff challenged Yahoo’s practice of sending unsolicited text messages to cell phone owners who had not consented to receive such text messages. He sought statutory damages, treble damages, cost, fees declaratory judgment and an injunction. He alleged that Yahoo violated the Telephone Consumer Protection Act in sending the unsolicited messages. Yahoo argued that the TCPA only prohibits unsolicited automated telemarketing and bulk communications sent via an automatic telephone dialing system, or ATDS. An ATDS has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and dials those numbers. Yahoo asserted that its system was not an ATDS because it lacked the capacity to store or produce telephone numbers to be called using a random or sequential number generator. Yahoo also argued that its messages did not fall within the TCPA because the TCPA was intended to regulate unsolicited advertising or bulk communication, not messages forwarded at the request of the user.

Plaintiff argued that he never consented to receive messages and that consent must come from the current subscriber, not a previous owner of the number. He also argued that Yahoo’s system is an ATDS, asserting that the court should look at the system capacities, not the way it is actually used.

Yahoo argued that the opinion of the plaintiff’s expert witness was based on an improper interpretation of the term “sequential,” that the witness had not reviewed the software or programming used by Yahoo’s message service, that the witness’s wife was a named plaintiff in the action and that the witness lacked credibility because he earned 80 to 90 percent of his income from testifying in TCPA cases.

The statute defines an ATDS as equipment with the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers. Yahoo offered its email users an option to register their phone numbers and receive a text message when the customer received email. Yahoo’s system automatically converted email messages into a truncated format, used the subscriber’s number from a stored list and sent a text message to the subscriber’s cell phone. Yahoo argued that its system does not have the capacity to store or produce telephone numbers to be called using a random or sequential number generator and thus, does not constitute an ATDS.

The court found that plaintiff’s expert witness was unreliable on the issue of sequential number generation and whether Yahoo’s system constituted an ATDS as defined by the statute. Thus, Yahoo did not send the plaintiff text messages via an ATDS and judgment was granted for Yahoo.

Since the court found that Yahoo’s system was not an ATDS, there was no reason to address whether the text messages sent constituted “unsolicited telemarketing” of the type limited by the TCPA.