Does Yahoo Use an Autodialer in Violation of the TCPA?

December 16, 2015

autodialerOn December 14, 2015, the United States District Court for the Southern District of California denied a motion for summary judgment filed by Yahoo! Inc. (“Yahoo”) which claimed that human intervention removed one of its text messaging platforms from the definition of “autodialer” within the meaning of the Telephone Consumer Protection Act (“TCPA”). The litigation revolves around Yahoo’s SMS Messenger Service, which allows registered Yahoo users to send instant messages to mobile telephones from their computers. When a Yahoo user uses the platform to send an instant message, Yahoo checks its database to see whether anyone had previously sent a message to that mobile number using the Yahoo messenger service. If the recipient’s mobile telephone number has never before received a text message sent using Yahoo’s platform, Yahoo automatically sends a “Welcome Message” along with the original text. Plaintiff Rafael Sherman claimed that the Welcome Message violates the TCPA. In response, Yahoo argued that its messenger platform is not an automated telephone dialing system (“ATDS”) within the meaning of the TCPA. The Court denied the motion for summary judgment, holding that “there are genuine issues of fact as to whether the [messenger] system is an ATDS.”

Is Yahoo’s Instant Messenger Platform an ATDS?

Yahoo Autodialer-related Summary Judgment Motion Denied

In moving for summary judgment, Yahoo argued that its Welcome Message is “appended” to the original text message sent by the Yahoo user, and that such “human intervention” removes its platform from the definition of an ATDS under the TCPA. The plaintiff disputed Yahoo’s claim and argued that the Welcome Message is a separate and independent text message automatically generated and sent via an ATDS. The Court held that “a jury could find that there are two separate and individual texts, the user text to the consumer and the Welcome text which is sent automatically by Yahoo as a separate text message.”

The Court then relied on a recent interpretation of the TCPA by the Federal Communications Commission (the “FCC”), which states that “how the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.” The Court did not establish a bright-line rule of how much human intervention is necessary to remove equipment from the definition of an ATDS, but noted that “a person will always be a but-for cause of any machine’s action, and therefore, I conclude that the FCC’s ‘human intervention’ gloss on the [TCPA] requires more than but-for causation.” As a result, the Court denied Yahoo’s summary judgment motion and left it to a jury to decide whether or not Yahoo’s platform constitutes an ATDS.

Protect Yourself

In September of this year, the Court denied the plaintiff’s motion for class certification. Because the case is now individually-based, rather than class-based, the parties may settle before a jury decides the issue of whether Yahoo’s platform is an ATDS within the definition of the TCPA.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website. If you need telemarketing law guidance and/or if you have been served with process concerning your telemarketing practices, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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