The Third Circuit Court of Appeals has upheld a summary judgment ruling in favor of Yahoo after it was sued by a plaintiff for allegedly violating the Telephone Consumer Protection Act by sending him more than 27,000 automated text messages he did not provide consent to receive.
However, because the previous owner of the plaintiff’s phone number had provided consent to receive the text messages and because the technology used by Yahoo did not meet the definition of an automated telephone dialing system, the Third Circuit affirmed a summary judgment in favor of the defendant, which is actually the second time it has ruled in favor of Yahoo in this case.
A copy of the ruling in Dominguez v. Yahoo can be accessed by clicking here.
This case has been back and forth between the District Court and the Third Circuit on both sides of the Court of Appeals for the District of Columbia’s ruling in ACA International v. FCC, and has come out on top both times.
At issue is whether a service that Yahoo offered, which sent a text message to an individual every time that person received an email to his or her Yahoo account, met the definition of an ATDS. A District Court in 2014 found that the service did not meet the definition because it did not have the capacity to store or produce telephone numbers using a random or sequential number generator. The plaintiff appealed that ruling and during the appeal process, the FCC issued its 2015 Declaratory Ruling, which changed the definition of an ATDS to include that if the system had the potential capacity to store or produce phone numbers using a random or sequential number generator. That led the Third Circuit to vacate the original summary judgment and remand the case back to the District Court. The original complaint was amended and both sides submitted expert testimony to argue their case. The District Court ruled again in favor of Yahoo and the plaintiff again appealed. In that timeframe, the ruling in ACA International v. FCC was released and again, the playing field of what defines an ATDS changed.
The Appeals Court did not buy any of the reports from the four experts that the plaintiff used to try and make its case that the service used by the defendant constituted an autodialer.
Ultimately, Dominguez cannot point to any evidence that creates a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers. On the contrary, the record indicates that the Email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user. There can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages. But those messages were sent precisely because the prior owner of Dominguez’s telephone number had affirmatively opted to receive them, not because of random number generation.
