Antitrust Law Daily Wrap Up, PRIVACY—S.D. Cal.: Fact issues preclude summary judgment in mobile phone user’s TCPA case against Yahoo, (Feb 5, 2014)

By Linda O’Brien, J.D., LL.M.

The federal district court in San Diego has rejected Yahoo’s motion for summary judgment in an action against the Internet service provider for sending unsolicited text message notifications to mobile telephone users in violation of the Telephone Consumer Protection Act (TCPA) (Sherman v. Yahoo! Inc., February 3, 2014, Curiel, G.).

Yahoo! Inc. provides an instant messaging service for registered users of Yahoo. The service allows Yahoo users to send instant messages to mobile devices from their personal computers through the Yahoo platform. The platform converts the instant messages to text messages so they can be received on the mobile devices. The recipient can reply from their mobile device and the sender will receive the reply as an instant message. Yahoo sends a notification message if the mobile phone user has not previously received a message via the Yahoo service. The mobile phone user can then use three methods of opt-out of receiving future Yahoo service messages.

Rafael Sherman filed a class action suit against Yahoo, asserting that the text messages violated the TCPA by illegally contacting him on his cellular telephone by using unsolicited text messages. He claimed that he received two text messages on his cellular telephone. The first message stated that a Yahoo user had sent him a message and the second message urged him to go online that the sender wanted to talk to him. Sherman alleged that he was not a subscriber to Yahoo’s instant messaging service at the time he received the messages and he did not provide Yahoo with his mobile phone number. Yahoo moved for summary judgment.

The TCPA was enacted to protect privacy interests of residential telephone subscribers by placing restrictions on unsolicited calls from automatic telephone dialing systems, according to the court. The court first determined that Sherman did not provide his prior express consent to Yahoo to be contacted with the meaning of the TCPA. Sherman did not voluntarily send Yahoo any messages prior to receipt of the unsolicited text messages and did not provide Yahoo prior express consent or take any action that would have justified a response from Yahoo.

The court also found that Yahoo’s sending of a single notification message without prior consent was actionable under the TCPA. The plain language of the statute exempted certain calls in certain categories and the prohibition applied regardless of the content of the call.

However, there were genuine issues of material fact as to whether the technology utilized by Yahoo for the service constitutes an automatic telephone dialing systems within the meaning of the TCPA. The court ruled that, since the parties disputed whether Yahoo’s instant messaging service technology had the requisite capacity to both store telephone numbers and dial random or sequential numbers, summary judgment was inappropriate.

Communication Decency Act immunity. Finally, the “good Samaritan” immunity under the Communication Decency Act for the blocking and screening of offensive material on the Internet did not apply. Yahoo did not engage in any form of context analysis of the text message to identify harmful or offensive material prior to the automatic sending of a notification message, the court concluded.

The case is No. 13cv0041-GPC-WVG.

Attorneys: Abbas Kazerounian (Kazerounian Law Group, APC) for Rafael David Sherman. Ian Charles Ballon (Greenberg Traurig LLP) for Yahoo! Inc.

Companies: Yahoo! Inc.

Cases: ConsumerProtection Privacy CaliforniaNews