Federal Appeals Court Decision Brings More TCPA Litigation Headaches
November 12, 2015
By Mae Kowalke, TMCnet Contributor
The Telephone Consumer Protection Act (TCPA) continues to be a source of confusion and ongoing litigation when it comes to whether a system is considered an auto dialer and therefore subject to TCPA regulations.
In one of the first federal appellate court decisions to apply the Federal Communications Commission’s declaratory ruling to reduce the volume of auto dialer litigation cases, the court showed that the FCC’s (News - Alert) ruling might open up as many new issues as it intended to resolve.
In Dominguez v. Yahoo, Inc., the Third Circuit court reviewed the case where the plaintiff alleged that Yahoo used auto dialer technology when it sent text messages to his mobile phone without consent—a no-no under the TCPA. While the earlier judgment found there was “no evidence that Yahoo’s [text messaging] system could generate random or sequential numbers,” making Yahoo’s system not an auto dialer, the appellate court reversed the ruling and sent it back to the lower court after applying the new FCC rules on auto dialers.
The appellate court ruled that summary judgment had been rendered before the FCC clarification, and thus the lower court was wrong in concluding that no reasonable juror could find Yahoo’s text-messaging system to be an auto dialer.
The reversal is important for two reasons.
First, the ruling suggests that on remand the issue of whether Yahoo’s equipment qualifies could become a question of fact that would have to go to a jury. This could make the task of proving that a system is not an auto dialer more onerous, since previously such decisions did not require the jury to establish that fact.
Second, the decision is important because the Third Circuit was not prepared to accept the fact that both parties had agreed prior to the first ruling that it is the present capacity of equipment at the time the texts are sent that controls the definition. This opens the door for another line of attack that plaintiffs can use to keep a case alive, and introduces the need potentially for more fact-finding.
Overall, the FCC’s ruling earlier this year continues to be a problem for the courts and businesses that just want to handle calling in the legally accepted way.
Edited by Rory J. Thompson