On December 14, 2015, a federal judge in the Southern District of California concluded that a jury should decide whether Yahoo is liable under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, for “welcome messages” automatically sent via the Yahoo Messenger platform, even though the messages were triggered by the human intervention of Yahoo users.

In Sherman v. Yahoo!, Inc., Yahoo is facing a suit for “appending” welcome messages to text messages sent by users of Yahoo’s Messenger platform. The platform converts Yahoo users’ instant messages into text messages that can be delivered to a recipient’s mobile device. Recipients who have never received a text message through the Yahoo Messenger platform receive a welcome message from Yahoo accompanying the text.1 The plaintiff claims these welcome messages are unsolicited text messages sent using an “automatic telephone dialing system” as defined by the TCPA.

Yahoo moved for summary judgment, arguing that the text messages sent through its Messenger platform are not sent using an “automatic telephone dialing system” (“ATDS”) as defined under the TCPA, but rather require “human intervention.” In denying Yahoo’s motion, the court found, “there are genuine issues of fact as to whether the [Messenger platform] is an ATDS. 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 court relied on the Federal Communications Commission’s July 2015 Declaratory Ruling (2015 FCC Ruling),2 which states, “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.” Based on this language, the court concluded that a jury should determine whether human intervention pushed the Messenger platform outside the scope of the TCPA’s definition of an “automatic telephone dialing system.”

The court declined to follow a number of district court opinions granting summary judgment for defendants on grounds that text messages were triggered by human intervention. The court distinguished these cases, in part, because all were decided prior to the 2015 FCC Ruling. More broadly, the court rejected the argument that human intervention in the causal chain of events leading to the disputed text message pushes the conduct outside the scope of the TCPA. The court opined that human intervention will always be a “but-for cause” of any dialing machine’s action, and the but-for analysis is inconsistent with the FCC’s ruling to consider human intervention on a case-by-case basis.

Notably, the court did not address the portion of the 2015 FCC Ruling that dealt with TextMe’s petition requesting “that the Commission clarify that TextMe does not ‘make’ calls or send text messages pursuant to the TCPA; instead, users do.”3 Like Yahoo, TextMe argued that its invitational text messages were initiated by the user who invites selected contacts in the user’s mobile device to join TextMe. Agreeing with TextMe, the FCC concluded “that the app user's actions and choices effectively program the cloud-based dialer to such an extent that he or she is so involved in the making of the call as to be deemed the initiator of the call.” Unlike TextMe’s users, however, the Yahoo user was unaware the welcome message would be sent along with the text message.

Although the court offers little guidance as to the necessary degree of human intervention, it suggests that the user’s knowledge of the additional welcome message is critical in assessing whether it was sent with human intervention. Whether knowledge will be a dispositive factor applied by other courts remains to be seen. But if a user knowingly and affirmatively sends a text message, it should follow that an inseparable, informational welcome message was also sent knowingly. Therefore, the welcome message – like the original text message – was sent with human intervention.

Deviating from rulings issued by other courts, the Yahoo opinion suggests that now there is no bright-line rule regarding what qualifies as human intervention for purposes of determining whether an autodialer was used. Zeroing in on the FCC’s “case-by-case” reference, the court entirely ignored the crux of the FCC’s directive on autodialers: “the basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Yahoo’s Messenger platform required the users to initiate the transmission of each welcome message, and the platform could not send thousands of welcome messages in a short period of time without the action of individual users. Hopefully, other courts will continue to see that individual human intervention for each call or message is all that is needed to avoid mischaracterizing the telephone or text messaging equipment as an ATDS.