Court Says Yahoo’s Automatic Text Message Could Violate TCPA

The welcome message that Yahoo sends through its SMS Messenger Service could result in liability for the company, according to a federal judge.

The court denied Yahoo’s motion to dismiss the text spam class action lawsuit filed against it under the Telephone Consumer Protection Act, or TCPA.

Plaintiff Rafael S. says the way Yahoo adds a greeting to some messages constitutes a TCPA violation.

Yahoo’s SMS Messenger Service allows users to send a text message from a computer to a mobile phone. Whenever a user sends a message, Yahoo checks its database to see if the destination phone number has ever received a message through Yahoo’s platform before. If it hasn’t, Yahoo automatically includes a “welcome” message with the user’s text.

Rafael argues that the automatic welcome message violates the TCPA, but Yahoo disagrees. In moving for dismissal, Yahoo argued that the welcome message could not be sent without the user’s initiation.

Therefore, Yahoo argued, the user’s participation in sending the welcome message is “human intervention” that prevents its platform from falling within the definition of an automatic telephone dialing system, a type of mechanism subject to certain TCPA restrictions.

The court disagreed. It saw that a jury could distinguish the welcome message from the original message intended by the user, and that the way Yahoo sends the welcome message could constitute use of an automatic telephone dialing system.

The court did note that there’s no clear way to determine what does or does not constitute an automatic telephone dialing system, but that it needs to be determined on a case-by-case basis.

It cited a recent interpretation of the TCPA by the Federal Communications Commission (FCC) that said the determination could depend on the type of equipment used and what sort of human intervention is needed to use it.

But the court also noted some features of Yahoo’s welcome messages that seem to put the system under TCPA control. The court cited evidence that the content of the message was composed by Yahoo, not any individual user. The court also noted evidence that the message was sent without the user’s request or knowledge.

Autodialers Under the TCPA

Among other restrictions on other types of communication, the TCPA prohibits use of an automatic telephone dialing system to make calls to certain types of devices, including mobile phones, without the recipient’s prior express consent to receive that type of call. The same restriction applies to text messages.

The statutory definition of this type of system includes equipment that has the capacity to store numbers or to generate them, as well as to call those numbers. In the July 2015 declaratory ruling cited by the court in Rafael’s TCPA lawsuit, the FCC noted that equipment used to send internet-to-phone text messages can constitute an autodialer for TCPA purposes.

The TCPA also provides for statutory damage amounts of at least $500 for each violation. If the plaintiff can prove the violations were willful or knowingly done, the damage amount jumps to $1,500 per violation.

These statutory damage provisions can add up to a hefty damage award, especially where a case can be made for a TCPA class action lawsuit.

In Rafael’s case, however, the court denied the plaintiff’s motion for class certification in September 2015, leaving the plaintiff with much less strength to wield against Yahoo.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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