District Court (Ill.) Says Triable Issue of Fact Existed as to Whether Yahoo! Used ATDS to Send Text Messages

In Johnson v. Yahoo!, Inc., 2014 WL 7005102 (N.D.Ill. 2014), Judge Shah denied Yahoo!’s motion for summary judgment on Plaintiff’s TCPA case, on the basis that triable issues of fact remained as to whether Yahoo! used an ATDS.

Plaintiffs are cell phone subscribers who each received at least two text messages from defendant Yahoo!. The first: personalized text messages originally sent to plaintiffs by some acquaintance. The second: Yahoo!’s explanation for why plaintiffs received the first. While plaintiffs take no issue with the former, they contend Yahoo!’s sending of the latter violated the Telephone Consumer Protection Act.  Plaintiffs’ claims can survive only if Yahoo! sent the second messages using an “automatic telephone dialing system.” Yahoo! has moved for summary judgment contending the undisputed record shows that it did not. However, because there remain genuine issues of fact, the motion is denied.

The District Court denied Yahoo’s Motion for Summary Judgment.

I agree with Yahoo! that the FCC’s interpretation on this point conflicts with the statutory requirement that an ATDS have the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator [.]” 47 U.S.C. § 227(a)(1) (emphasis added). And if tasked with applying only the statute’s language, I would conclude that Yahoo!’s system does not constitute an ATDS because the PC2SMS service does not use a random or sequential number generator. Nevertheless, the TCPA and Hobbs Act bind me to the FCC’s interpretation. See 47 U.S.C. § 227(b)(2); 28 U.S.C. § 2342(1). . . For their part, plaintiffs ask that I rule as a matter of law that “Yahoo used an ATDS[.]” Plaintiffs have raised a genuine issue of fact suggesting that when PC2SMS is paired with the Address Book database, that collective system constitutes at ATDS because it has the capacity to dial numbers from a database without human intervention–i.e., without human intervention, it is capable of sending a “Welcome” or “Warning” system message to a cell phone number pulled from the Address Book database. The same is true with regard to the Session database–PC2SMS can automatically sends responsive text messages to phone numbers it pulls from the Session database. However, it remains to be seen whether the various components at play constitute one singular system, or multiple independent systems (some of which happening to share common components). See, e.g., [84] at 10 n.3. The import being, if the PC2SMS–Address Book system is independent of the PC2SMS-manual entry system, plaintiffs will have to prove that their texts came from the former.