Yahoo’s system for automatically texting its users when their email accounts have received a new message doesn’t violate the federal law that protects consumers from unsolicited calls, a federal judge has ruled.
U.S. District Senior Judge Michael M. Baylson of the Eastern District of Pennsylvania granted summary judgment to Yahoo in a proposed class action brought by Bill Dominguez, who was given a recycled phone number when he bought a cellular telephone. The person who had the number before him had signed up for Yahoo’s program that alerts its users to new email messages through a text message. Dominguez would get the texts although he had never consented to the program.
The crux of the decision turned on the technical properties of Yahoo’s alert system and the definition of an automatic telephone dialing system, which is prohibited for use as an automated telemarketing tool under the Telephone Consumer Protection Act (TCPA). That is the federal law under which Dominguez brought his suit.
Baylson framed his opinion this way: “Surely, one of the unwelcome consequences of the digital age are unsolicited messages, telephone calls, and emails. However, this phenomenon is not new. Unwelcome circumstances have faced characters in literature and opera for centuries. Victims of circumstance are often portrayed by Shakespeare—Hamlet, Othello, Shylock; and in opera, Verdi’s Don Carlos, who without fault, loses his fiancée, Elisabeth of Valois, to his own father, King Philip of Spain, who marries Elisabeth to ensure peace with France.”
“In this case, plaintiff Bill Dominguez is also a victim of circumstance,” Baylson said.
Yahoo didn’t contest that Dominguez got unsolicited text messages because the person who had his number before him had signed up for the alert service, but it did argue that its system isn’t an automatic telephone dialing system (ATDS).
The law defines an ATDS as a system that has the capacity to store or produce phone numbers using a random or sequential generator and then dial the numbers, according to the opinion.
Yahoo argued that its program doesn’t use a random or sequential number generator.
Dominguez, however, “argues that courts must look to the system’s capacities, not the way in which it is actually used, and argues that the capacities of Yahoo’s system fall within the statutory definition,” according to the opinion.
He offered to the court a purported expert, Randall Snyder, who failed to convince the judge that Yahoo’s system would qualify as an ATDS that is barred by the law.
Snyder has been an expert in 65 cases about cellular technology, including 41 cases about text messaging and 33 cases brought under the TCPA and related regulations, Baylson said in a footnote.
Yahoo undercut Snyder’s legitimacy by telling the court that his opinions “are driven by his own personal interest,” according to the opinion, since his wife is a named plaintiff in a class action suit over one unsolicited text message sent to his son due to a recycled phone number.
And, “Yahoo argues that Mr. Snyder lacks credibility because he is personally interested in fighting against ‘spam’ text messages and earns 80-90 percent of his income from testifying in TCPA cases,” according to the opinion.
Yahoo offered the court its senior product manager for anti-spam and delivery of Yahoo mail, Ajay Gopalkrishna, who said that the alert system didn’t have the capacity to store or produce phone numbers to call through a random or sequential system.
“Yahoo asserts that its service could not randomly or sequentially generate telephone numbers, but only sent messages to a user that had authorized them and only when that user received an email,” Baylson said. “Plaintiff has not offered evidence to dispute Yahoo’s assertion.”
Beyond that, Baylson was skeptical of Snyder’s expertise, saying in a footnote, “Mr. Snyder’s declaration reflects a misunderstanding of the statutory requirements, which require more than simply that the system store telephone numbers and send messages to those numbers without human intervention.”
Baylson also said that the plaintiff’s citation of a U.S. Court of Appeals for the Ninth Circuit opinion that quoted from Snyder’s report was “deceptive” since the court quoted him only to recount his opinion, which was disputed.
“The court did not adopt Mr. Snyder’s views,” Baylson said.
(Copies of the 11-page opinion in Dominguez v. Yahoo, PICS No. 14-0413, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •