Telemarketing Software Featured Article

While the Telephone Consumer Protection Act (TCPA), the nation’s federal telemarketing and robocall rules may have been put in place to catch scammers, it’s increasingly catching a number of very big fish. Scammers often mask the origins of their calls, making it difficult to locate them. Many otherwise legitimate organizations, however, are falling afoul of the law and its amendments. A Philadelphia man is reviving his lawsuit against Internet business giant Yahoo, claiming that the company sent him 28,000 unsolicited text messages. If the case turns against Yahoo, the company could be on the hook for $41 million in damages under the punitive schedule of the TCPA.

The case, Dominguez v. Yahoo, Inc., had been previously dismissed by a lower court, but the U.S. Court of Appeals for the Third Circuit recently overturned the dismissal, allowing Philadelphia resident Bill Dominguez to proceed with his case against the company. Now, Dominguez will attempt to prove he received nearly 28,000 text messages from Yahoo, and the messages were facilitated by an autodialer, which would be in violation of the TCPA.

Michael Daly, a partner at Drinker Biddle in Philadelphia, studied the case and told the Pennsylvania Record the way the court interprets the definition of an autodialer could impact the way companies are able to communicate with patrons.

“That issue is incredibly important to businesses that communicate with customers by phone or text because if they use an ATDS they may be required to get the prior consent of the called party, and may be exposed to as much as $1,500 in statutory damages per call or text if they don’t,” Daly told The Record.

The lawsuit won’t be a walk in the park, however. Other higher courts have put a very narrow definition on auto dialer technology. This summer, a company called Shac, operator of the Sapphire Gentlemen’s Club in Las Vegas, won a TCPA violation victory in the U.S. District Court for the Northern District of California. The company was spared a proposed class action lawsuit under the TCPA because it was able to prove that the promotional text messaging system used by Shac involved human intervention and, therefore was not considered to be illegal use of an autodialer.

Increasingly, these lawsuits will boil down to how much human involvement was in the process of sending the messages and therefore whether they meet the TCPA’s definition of “autodialer,” which some telemarketing companies complain is distressingly nebulous. Ultimately, the court is likely to examine the technology behind Yahoo’s message and determine whether a human sent the message, or a computer sent the message. With the Shac precedent already set, Dominguez may have a hard time proving his case.