In Dominguez v. Yahoo, Inc., No. 14-1751 (3d Cir. Oct. 23, 2015) the Third Circuit vacated the district court’s finding on summary judgment that no reasonable juror could find Yahoo’s text-messaging system to qualify as an ATDS (automated telephone dialing system) under the TCPA.  In doing so, the Third Circuit remanded the case back chiefly due to the lack of evidence to support this finding.  Notably, the Court found that Yahoo’s expert affidavit—the only evidence on record relied upon by Yahoo to prove it did not use an ATDS to text Plaintiff--- was conclusory and a mere restatement of the statutory language defining an ATDS.  The Court used this opportunity to point out that the lower court did not have an opportunity to take into account the findings and conclusions in the FCC’s July 2015 Order, which, among many findings, discusses and clarifies the term “capacity” with respect to autodialers.  With that in mind, Yahoo’s case turns on whether it can look to the record to find further support that its mechanism of sending text messages falls outside the definition of the ATDS.  That evidence will be based on the texting platform’s “capacity” or lack thereof, to store or produce numbers to be called using a random or sequential number generator.  The Third Circuit recognized broadly that, in light of the 2015 FCC Order, “so long as the equipment is part of a ‘system’ that has the latent ‘capacity’ to placed autodialed calls, the statutory definition is satisfied.”  Yahoo, Inc., No. 14-1751, at pg. 7. 

Under this guidance, Yahoo will need to demonstrate, based on the 2015 FCC Order and the record evidence, that its dialing equipment cannot and never will have the potential to store or produce, and dial random or sequential numbers, if not presently used for that purpose.  The Third Circuit, however, left the door open on remand “for further briefing and factual development (if appropriate)” regarding “capacity” under the 2015 FCC Order.  Yahoo, Inc., No. 14-1751, at pg. 8.