Human Intervention After The FCC’s Declaratory Ruling

A recent decision illustrates the uncertainties wrought by the “case-by-case” approach of the FCC’s July 2015 Declaratory Ruling when applied in litigation. In Sherman v. Yahoo, Inc., the plaintiff challenged Yahoo’s messenger service, which converted instant messages submitted by Yahoo users from their computers to text messages that would be received on mobile devices. Plaintiff claimed that the Yahoo service sent her mobile device an unsolicited welcome message using automated dialing technology in violation of the TCPA. Yahoo moved for summary judgment, arguing that its service was not an automatic telephone dialing system (ATDS) as defined by the TCPA because messages could not be sent without human intervention.

The California district court started from the premise that it was bound by the interpretation of ATDS set forth in FCC’s Declaratory Ruling, including the FCC’s ruling that Internet-to-phone text messaging technology can qualify as an ATDS. It also quoted the FCC’s “instruct[tion]” in the Declaratory Ruling that “how the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.”

With that as its starting premise, the court not surprisingly concluded that that a jury would need to determine if and how the element of human intervention applied to Yahoo’s service, and on that basis denied summary judgment. The court rejected Yahoo’s argument that the welcome text would not have been sent but for the user’s act in initiating the message. In doing so, it declined to follow five earlier district court decisions that rejected ATDS allegations on this basis, noting that these decisions predated the Declaratory Ruling, and “involve[ed] distinguishable fact patterns with varying amounts of human intervention by the platform user and actual sender of the text message.”

The decision did note some distinguishing factors specific to the Yahoo service, including evidence that the welcome message was automatically generated and sent by the service, without the request or knowledge of the user. The court also cited evidence that Yahoo, rather than the user, composed the contents of the welcome text. And to be clear, the outcome before the district court applying this year’s Declaratory Ruling was not different from a decision from 2014 (by an Illinois district court) denying summary judgment as to welcome texts sent through the Yahoo service.

But the take-away from this recent decision is that there is no bright-line test of human intervention under the Declaratory Ruling. Instead, whether a particular platform is an ATDS will depend on the “amounts of human intervention” required of the platform user, as assessed by the finder of fact in any particular case. That lack of predictability is one of many grounds on which petitioners have challenged the Declaratory Ruling.

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