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It was back in 2011 when an incident occurred that to this date has yet to be resolved. The incident goes way beyond the original scope of the issue and has led to multiple discussions on what is considered to be an autodialer. Attempts have been made under the Telephone Consumer Protection Act of 1991 (TCPA) to define autodialing and robocalls.

A little over six months ago, the Federal Communications Commission (FCC (News - Alert)) released its TCPA Omnibus Declaratory Ruling and Order regarding the TCPA. If the equipment that a company uses to make a call or send a text to consumers is determined to be an autodialer, then the calls and text messages must comply with the TCPA. Yahoo finds itself embroiled in what this definition actually is.

Five years ago a person purchased a new cell phone, which came with a telephone number that had been reassigned from another user’s account. Considering the lack of available numbers, it is not a new practice to recycle phone numbers once they become available.

The problem comes from how the number was used by the previous owner. In the five year old instance, the number belonging to Jose Gonzalez had a subscription to Yahoo’s text message alert service. This sent a text message every time there was a new email in the user’s email account. Unfortunately it was never removed, so every time that he received a new email, the new owner of the number, Bill Dominquez, received a text message.

Although Dominguez contacted Yahoo and the FCC in an attempt to stop the messages, he continued to receive the text messages. It was at this point that Dominguez file a violation of the TCPA lawsuit against Yahoo. Since that time, Yahoo has been arguing that its equipment is not capable of making automatic calls and therefore does not fall under the TCPA’s autodialer scope. It was also at this time and for this reason that Yahoo moved for a summary judgment.

The District Court agreed with Yahoo that an Automated Telephone Dialing System (ATDS) needed to have capacity to store or produce numbers randomly or sequentially and to dial numbers randomly or sequentially from a stored list. Using this definition, the court ruled that the text message alert system used by Yahoo was not an ATDS.

Following appeals by Dominguez, the Third Circuit Court vacated the District Court’s entry of summary judgment. After limiting the definition of an ATDS the case was remanded to the District Court. Once again it became necessary to address whether Yahoo’s equipment meets the statutory definition of an ATDS.

Earlier this year, Yahoo once again asked for a summary judgment in the case of Dominguez et al. v. Yahoo, Inc. In addition to the case being remanded to the District Court, Dominguez amended the complaint suggesting that by using software, such as a Microsoft (News - Alert) Excel spreadsheet, that Yahoo could, in fact create an autodialer.

The discussion of what constitutes an autodialer or robocalls will continue until an all-encompassing definition can be reached. However, it seems that if Yahoo had addressed the problem five years ago, Dominguez would not have received 27,809 messages over a seventeen month period and would not have needed to file a lawsuit.