In the case Sherman v. Yahoo! Inc., 2015 U.S. Dist. LEXIS 167177, the TCPA law extended beyond the traditional and specifically stipulated “automatic telephone dialing system,” and flash forwarded to the present technology of instant messaging and SMS messages. In recent courtroom events, Yahoo has been defending their Mobile SMS Messenger Service (“PC2SMSService”). Yahoo requested a summary judgement because their PC2SMSService does not use an automatic telephone dialing system (ATDS) combined with the “human intervention” argument.

The “Human Intervention” Defense

When Yahoo claimed the “human intervention” defense, they were essentially stating that their service does not function without a human initiating the welcome text. Despite this claim, the United States District Court Federal Judge, Southern District of California, determined that a jury could conclude that an automatic telephone dialing system of sorts was used to send the welcome text. Hence, Yahoo’s motion for the summary judgment was rejected.

The “human intervention” argument has stemmed from TCPA litigation cases in which mobile text messaging platforms are used and challenged.  After Sherman, the FCC  explicitly rejected a human intervention test.  It held “We also reject PACE’s argument that the Commission should adopt a “human intervention” test by clarifying that a dialer is not an autodialer unless it has the capacity to dial numbers without human intervention. Because the Commission has previously rejected a restrictive interpretation of autodialer in favor of one based on a piece of equipment’s potential ability, we find that PACE’s argument amounts to a simple variation on the “present ability” arguments we reject above.”  In re Rules Implementing the Tel. Consumer Prot. Act of 1991 23 FCC Rcd 559 at 566-67; 2015 Order at ¶ 20

The TCPA law is changing mobile text platforms in the sense that new apps will need to ensure they stay within the scope of the law and do not send out unsolicited texts. In the meantime, if you have received unsolicited texts, you should contact a knowledgeable Illinois consumer law attorney. The attorneys at Keogh Law Ltd. will help you fight for your rights under TCPA law. Contact or call us today for a free consultation at (866) 726-1092.