In Sherman v. Yahoo!, Inc., 2014 WL 369384 (S.D.Cal. 2014), Judge Curiel denied Yahoo’s Motion for Summary Judgment that sought to validate it’s “Yahoo! Messenger” system under the TCPA.
Defendant describes Yahoo! Messenger as an instant messaging client and associated protocol provided by Yahoo! free of charge that can be downloaded and used by anyone registered as a user with a Yahoo! ID. (Dkt. No. 9–2, “Choudhary Decl.,” ¶ 3.) Yahoo! offers a feature called the Mobile SMS Messenger Service (“PC to SMS Service”), which allows registered Yahoo! users to send instant messages to mobile devices from their computers through the Yahoo! Messenger platform. (Choudhary Decl. ¶ 4.) “PC to SMS Service” converts instant messages into SMS messages (commonly referred to as text messages) so that they will be received on mobile devices. (Choudhary Decl. ¶ 5.) Recipients can then reply from their mobile devices, and the sender will receive the reply message as an instant message. ( Id.) This tool allows people who do not own mobile phones to send and receive text messages from their computers. ( Id.) ¶ Yahoo! sends a mobile phone user a notification message in response to an instant message from an unidentified third party. Defendant utilizes the following Yahoo! Messenger notification process: ¶ When a Yahoo! user sends a message using the PC to SMS Service, Yahoo! automatically verifies whether anyone previously had sent a message to the intended recipient’s telephone number through the PC to SMS Service. If the recipient’s telephone number has not previously been sent a text message … then a single notification message is sent, alerting the recipient that a friend … sent a message …. It also instructs the recipient to “Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” This confirmatory message is automatically generated as a result of the instant message initiated by a Yahoo! user. ¶ (Choudhary Decl. ¶ 8.) The mobile phone user can then utilize three methods to opt-out of receiving future “PC to SMS Service” messages. Yahoo! sends the notification message only if the mobile phone user has not previously received a message via the “PC to SMS Service.” Here, Plaintiff had not previously received a message via the “PC to SMS Service” nor had he provided Yahoo! his mobile phone number. Accordingly, Plaintiff received a text message from Yahoo! when a third party sent him an instant message via Yahoo!’s Instant Messenger service.
The District Court find that a single text message was regulated by the TCPA, unlike those cases involving a single “confirmatory” text message.
The question then becomes whether Yahoo!’s sending a single notification text message without Plaintiff’s prior consent is actionable under the TCPA. Defendant argues that Yahoo!’s notification message is not the type of invasion of privacy Congress intended to prevent in passing the TCPA. (MSJ at 7–8.) Plaintiff responds that the text of the TCPA is unambiguous and content-neutral, and that a single call may be actionable under the TCPA. (Opp. at 10–12.) ¶ The Court declines to rely on Congressional intent when the language of the TCPA is clear and unambiguous. Satterfield, 569 F.3d at 951 (concluding the statutory text of the TCPA is clear and unambiguous). The plain language of the TCPA exempts certain calls in certain contexts. See 47 U.S.C. § 227(b)(1)(A)(iii) (exempting calls sent during an emergency or with prior express consent). In issuing the TCPA implementing guidelines, the FCC has determined certain categories of calls are considered exempt under the ‘prior express consent’ provision. See, e.g., In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008) (determining that autodialed and prerecorded “calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party”). Additionally, the FCC has noted that the TCPA prohibition applies “regardless of the content of the call.” Id. at 564, ¶ 11. Relying on the statutory text and the FCC implementing guidelines, the Ninth Circuit has approached application of the TCPA with a “measure of common sense.” Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir.2012). Indeed, courts in this district have found that “[c]ontext is indisputably relevant to determining whether a particular call is actionable.” Ryabyshchuck v. Citibank (S.Dakota) N.A., 2012 WL 5379143 (S.D.Cal. Oct. 30, 2012). ¶ Using these principles, the Court concludes that, absent prior express consent, a single call or text with the use of an ATDS may be actionable under the TCPA. See Satterfield, 569 F.3d at 946 (remanding case to district court where the alleged violation consisted of one advertising text message). This conclusion is in alignment with the FCC’s reiteration of the plain language of section 227(b)(1)(iii) as prohibiting the use of autodialers to make “any call” to a wireless number absent an exemption. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008). The Court concludes that the prohibition of § 227(b)(1)(iii) applies even if Yahoo! sent only one notification message to Plaintiff without his prior consent.
The District Court also found that Yahoo’s call system was an ATDS under the TCPA because it had the “capacity” to do prohibited calling, even if it did not do so in this particular case.
The TCPA only prohibits calls made with an “automatic telephone dialing system” (“ATDS”). The Ninth Circuit has upheld the FCC’s interpretation that a text message is considered a “call” within the meaning of the TCPA. Satterfield., 569 F.3d at 954. The TCPA defines an “automatic telephone dialing system” as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The FCC has interpreted an ATDS as “cover[ing] any equipment that has the specified capacity to generate numbers and dial them without human intervention, regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02–278, Report and Order, 18 FCC Rcd 14014, 14092 (2003) (“2003 TCPA Order”) (emphasis added). A predictive dialer is considered an ATDS under the TCPA. Id. at 14093. ¶ “A predictive dialer is … hardware, when paired with certain software, [which] has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers … from a database of numbers.” Id. at 14091. The FCC states that “the basic function of such equipment … [is] the capacity to dial numbers without human intervention.” In the Matter of Rules & Regulations Implementing the Te. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 566 (2008). The Ninth Circuit, upon evaluating ATDS technology under the TCPA, stated “the statute’s clear language mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’ “ Satterfield, 569 F.3d at 951. The Court thus concluded, “a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do so.” Id. ¶ Defendant argues the Yahoo! server and system is not an ATDS because it does not have the capacity to store or produce telephone numbers to be called, using a random or sequential number, nor can it dial such numbers. (MSJ at 9–10; Choudhary Decl. ¶ 11.) Plaintiff responds that Defendant’s own admissions show Yahoo!’s equipment is an ATDS because the Yahoo! server has the capacity to store numbers. (Opp. at 15–16.) ¶ The deposition of Yahoo!’s engineer, Nita Choudhary, indicates that Yahoo!’s equipment may have the capacity to store telephone numbers. (Choudhary Depo. at 44:9–46:6; Synder Decl. ¶ 35–36). As previously discussed, Yahoo!’s notification message is automatically generated after the mobile phone number is verified in a database to determine whether the number has previously been sent a message. (Choudhary Depo. at 64:14–21; Snyder Decl. ¶ 37, 39.) In short, Yahoo!’s notification process entails three steps: (1) a Yahoo! user initiates an instant message to a mobile phone number; (2) the “PC to SMS Service” server checks the Yahoo! server’s database for the mobile phone number; and (3) if the mobile phone number is not in the database (i.e., has not received a message before), then Yahoo! sends a notification message to the mobile phone user. ( Id.) If the mobile phone number was not previously in the server database, Yahoo!’s equipment stores the mobile phone number. (Opp. at 2; Choudhary Depo. at 41:3–42:14.) ¶ Plaintiff offers the expert report of Mr. Randall Snyder to support the contention that Yahoo!’s equipment is an ATDS. Mr. Snyder concludes Yahoo!’s “PC to SMS Service” is a “value-added text messaging service,” which “provide [s] a variety of text messaging services that are not strictly peer-to-peer … rather, they … use automated computer equipment to send and receive text messages.” (Snyder Decl. ¶¶ 10–12.) Based upon a review of background information and Yahoo!’s technology, Mr. Snyder concludes that the “equipment used by the Defendants has the capacity to store or produce cellular telephone numbers to be called, using a random or sequential number generator, or from a list of telephone numbers,” and that the equipment “has the capacity to dial cellular telephone numbers without human intervention.” (Synder Decl. ¶¶ 74, 76.) Specifically, Mr. Snyder reasoned “[i]n order for the “PC to SMS Service” system to determine whether an IM had ever been previously sent to a particular intended message recipient, identified only by a cellular telephone number, and whether to send that recipient an initial notification message, the system must store cellular telephone numbers to be called.” (Snyder Decl. ¶ 39) (emphasis in original).
¶ Yahoo! contends that it is impossible for
their equipment to send messages to random or sequential numbers. (Choudhary Decl. ¶ 11.) Specifically, Yahoo!’s engineer states that “[t]he servers and systems affiliated with the PC to SMS Service do not have the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to call those numbers. It is simply not possible.” ( Id.) In response, Plaintiff points to the testimony of Yahoo’s representative who testified that it could, if it wanted to, dial all of the telephone numbers in its database with a notification text message by writing new software code instructing the system to do so, thereby demonstrating the capacity to dial telephone numbers sequentially from a list of telephone numbers. (Choudhary Depo. at 61:9–62:17; 63:6–22.14.) As stated by the Ninth Circuit, the focus of the inquiry in evaluating whether a technology is considered an ATDS is whether the equipment has the capacity to store and dial phone numbers. See Satterfield, 569 F.3d at 951. The parties dispute whether Yahoo!’s “PC to SMS Service” technology explained above has the requisite capacity to both store numbers and dial random or sequential numbers. The Court concludes there is a genuine issue of material fact as to whether the equipment Yahoo! utilizes for the PC to SMS Service constitutes an ATDS within the meaning of the statute. As such, the Court DENIES Defendant’s motion for summary judgment.