Nicholas Malfitano Feb. 1, 2016, 3:49pm


PHILADELPHIA – Yahoo is seeking summary judgment in the case of a man who sued it for receiving tens of thousands of text message alerts.

"The sole issue for this court to determine on remand is whether Yahoo’s Email SMS Service had the capacity to generate telephone numbers randomly or sequentially and thus fell within the statutory definition of “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), when it was in use prior to 2013," the motion from defense counsel Brian T. Feeney, Lori Chang and Ian C. Ballon said.

Bill Dominguez claims he received 27,809 texts from Yahoo after purchasing a cell phone that used the number of its previous owner, who had signed up for a text alert every time an email was received.

Before filing this suit, Dominguez claims he contacted Yahoo to be taken off the text message alert, but was told because he was not the account holder of the email address registered to the phone, he couldn’t authorize a removal.

The text message alert service was discontinued in October 2013.

Dominguez filed his class action lawsuit under the TCPA, but it was dismissed after the district court found his definition of an auto-dialer – the device used to send him the text messages from Yahoo – wasn’t the same as the definition the TCPA used for an auto-dialer.

A July order updated the TCPA’s 1992 definition of an auto-dialer, which was as U.S. Court of Appeals for the Third Circuit Judge Thomas Ambro said, “A reflection of the times.” If the system had a “latent or potential capacity” to place auto-dialed calls, according to the order, the statutory definition would be satisfied.

However, defense counsel commented, “The Email SMS Service did not and could not generate telephone numbers randomly, sequentially, or in any other manner. Nor was it capable of sending text messages to randomly or sequentially generated telephone numbers because it was designed only to forward an incoming email to a single mobile number manually inputted by a Yahoo user.”

According to defense counsel, the service “never had the ability to generate numbers in any way at all because it was not designed to perform this function”, and it was not possible for the service to send a text message alert to more than a single telephone number at a time for a user account.

Most importantly, the motion argued the service “lacked the latent ability to generate phone numbers randomly, sequentially or in any other way” and was “not connected to any server, system, or database that had any capacity to generate phone numbers.”

“The Email SMS Service also could not be modified or used with any other platforms or third-party applications (such as Microsoft Excel, as suggested by Dominguez) to store or produce numbers, using a random or sequential number generator, and therefore had no ‘latent capacity,” the motion said.

Therefore, Yahoo counsel declared their client's service did not qualify as an auto-dialer in either an actual or potential way.

"Yahoo hereby renews its summary judgment motion based on evidence demonstrating that the Email SMS Service never had any capacity whatsoever, whether present or potential, active or latent, to generate numbers randomly or sequentially, or in any way at all," the defense's motion read.

“It is undisputed…that the Email SMS Service has no latent or potential capacity to generate telephone numbers randomly or sequentially. On either or both grounds, Yahoo is entitled to summary judgment,” the motion added.

Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania has not yet ruled on Yahoo's order requesting summary judgment.  

The plaintiff is represented by David A. Searles, Geoffrey H. Baskerville, John Soumilas, Mark D. Mailman and James A. Francis of Francis & Mailman, in Philadelphia.

The defendant is represented by Feeney, Chang, Wendy Mantell and Ballon of Greenberg Traurig, in both Philadelphia and Los Angeles, Calif.

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-01887

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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