Third Circuit Applies ACA on ATDS Issue Requiring Present Capacity
In Dominguez v. Yahoo!, Inc., the Third Circuit issued a precedential decision, requiring calling platforms have present—not potential—capacity to store or produce and call telephone numbers using a random or sequential number generator to constitute an “autodialer” under the Telephone Consumer Protection Act (TCPA). After buying a used smartphone, Dominguez received texts from Yahoo intended for the prior owner who set up a notification for when they received emails to their Yahoo account. When Dominguez asked for the texts to stop, Yahoo notified him only the prior owner could cause the texts to stop, and so Dominguez filed suit.
Yahoo moved for summary judgment, arguing its platform was not an ATDS, in part because it did not use a “random or sequential number generator”. Rather, Yahoo’s platform “only sent messages to a user that had authorized them and only when that user received an email.”
In ruling for Yahoo, the court noted that, “[u]ltimately, Dominguez cannot point to any evidence that creates a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers. On the contrary, the record indicates that the Email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user.”
Dominguez is important for a number of reasons. First, the Third Circuit grounded its analysis in the text of the TCPA itself, meaning it provides an alternative avenue to finding a system does not qualify as an ATDS from the present ongoing debate about the vitality of the FCC’s 2003 Order finding that a predictive dialer qualifies as an ATDS. Second, the decision fully laid to rest the present/future/possible capacity debate sparked and stoked by the 2015 Ruling which made anything that could even one day possibly be an ATDS an ATDS. Dominguez makes clear that ability and functionality of the equipment used to make the calls at issue at the time the call was made is all that matters. Third, it’s a circuit-level precedential opinion. While obviously it remains binding only in the Third Circuit, Dominguez is not a rogue slip opinion from some district court. It is a well-reasoned high-level opinion that litigants should freely incorporate into their defenses.