New opinion — TCPA provides no relief from text-message avalanche [updated]

Dominguez v. Yahoo — civil / consumer — affirmance — Roth

Some poor guy named Dominguez bought a cell phone that was assigned a phone number that used to be someone else’s, and that someone else had subscribed to get a text message every time she received an email. All Dominguez’s efforts to stop these messages were for naught, so he got 27,800 text messages from Yahoo—about 50 texts a day, every day, for 17 months.

Improbably, Dominguez did not kill anyone, and instead he sued Yahoo under the Telephone Consumer Protection Act, which makes it unlawful to use an autodialer to send non-emergency text messages. Today, the Third Circuit affirmed a ruling against poor Dominguez, holding that he failed to show that Yahoo’s text-notification service was an autodialer because it wasn’t calling numbers randomly or sequentially. No doubt he will find great solace in the court’s acknowledgement that “[t]here can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages.”

Joining Roth were Shwartz and Pappert EDPA by designation. The case was decided without oral argument.

Update: a blog post by TCPA defense lawyer Eric Troutman exults:

Today’s ruling … is a huge– and undoubtedly satisfying– victory for Yahoo!, but it also represent [sic] a massive shift in case law in favor of a limited reading of ATDS [automatic telephone dialing system], just when courts seemed to be content to continue reading the ATDS definition broadly. What an amazing development.