Court Rejects “Human Intervention” Argument in TCPA Summary Judgment Motion

On Monday a Federal Judge in the United States District Court, Southern District of California, denied a motion by Yahoo to bring a class action TCPA case to an early end.

The case, Sherman v. Yahoo! Inc., 2015 U.S. Dist. LEXIS 167177,  arose from a welcome text message Plaintiffs received via Yahoo’s Mobile SMS Messenger Service (“PC2SMSService”), which allows registered Yahoo users to send instant messages to mobile devices from their computers through the Yahoo Messenger platform.

Yahoo had brought a motion for summary judgment in an attempt to bring an early end to the case and avoid a trial.

Editor’s note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

Yahoo asserted that it was entitled to summary judgment on Plaintiff’s TCPA claims because text messages sent through its PC2SMSService were not sent using an “automatic telephone dialing system” (ATDS) as defined under the TCPA, but rather, required “human intervention.” Yahoo argued that the undisputed facts showed that their service does not have the capacity to send any messages without human intervention.

The court rejected Yahoo’s argument.  The Court found that there are genuine issues of fact as to whether Yahoo’s PC2SMSService is an ATDS. The court wrote, “A reasonable jury could conclude that the welcome text is produced and sent by an ATDS as the term is defined in the TCPA.”

The case will now continue to move through the traditional legal process.

insideARM Perspective

You might be asking yourself why this text messaging case is relevant to the ARM industry. The answer: At this point in time, almost any TCPA case is relevant to the ARM industry.

The order denying summary judgment is interesting for (at least) two reasons:

First, it is a decision that comes AFTER the FCC’s July, 2015 Rule Making. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 8017 (2015). It discusses how, in that 2015 Rule, the FCC instructed 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.’

Second, the court discussed several prior “human intervention” cases cited by Yahoo in support of its motion. But the court determined that “Each of these cases was decided prior to the July 2015 FCC rule making decision, and involved distinguishable fact patterns with varying amounts of human intervention by the platform user and actual sender of the text message.”