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Yahoo May Have Violated the TCPA with SMS Welcome Message

TMCnews Featured Article


December 22, 2015

Yahoo May Have Violated the TCPA with SMS Welcome Message

By Rory Lidstone, Contributing Writer


For businesses that operate in the United States, especially those with contact centers, the Telephone Consumer Protection Act (TCPA) is a serious consideration. This is partly because the TCPA encompasses not only telephone communications, but text messages too, forcing a lot of businesses to rethink how they contact potential and existing customers.


For most, this means simply buckling down and ensuring compliance with the act, but for others it can be more complicated. A trade group called the Association of Credit and Collection Professionals (ACA), for example, recently sought out to tweak TCPA rules in order to use an autodialer to contact those that are in arrears for their student loans. Meanwhile, other businesses may find themselves in violation of the TCPA, whether on purpose or accidentally. This seems to be the case with Yahoo.

According to law firm Klein Moynihan Turco over at the Lexology law blog, the United States District Court for the Southern District of California last week denied a motion for summary judgment that Yahoo filed. The motion claimed that human intervention removed one of its text messaging platforms from being classified as an autodialer as defined in the TCPA.

In particular, this case has to do with Yahoo’s SMS Messenger Service, which allows users to send instant messages to mobile phones from a computer. So far so good, according to the TCPA. The problem comes in with the way that Yahoo’s service deals with recipients who have never received a message via the SMS Messenger Service.

When a user receives an instant message via the platform, Yahoo checks its database to see if a message had been sent to that number previously. If not, the service sends an automated welcome message alongside the sent message’s text. According to the plaintiff, Rafael Sherma, this welcome message violates the TCPA. Yahoo, on the other hand, argued that its platform doesn’t constitute as an automated telephone dialing system (ATDS).

The Court did not agree with Yahoo, denying the motion for summary judgment and holding that “there are genuine issues of fact” in terms of whether Yahoo’s platform qualifies as an ATDS. As of now, it’s up to a jury to make the ultimate decision.

This major takeaway here for businesses is the Court’s decision to rely on a recent interpretation of the TCPA by the FCC (News - Alert), which states 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.” In other words, how much human intervention is necessary isn’t clearly defined.

 







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