A recent opinion from the Southern District of California suggests that now there is no bright-line rule regarding what qualifies as human intervention for purposes of determining whether an autodialer was used. In denying a motion for summary judgment filed by Yahoo, the court found that:

“there are genuine issues of fact as to whether the [Messenger platform] is an ATDS. A reasonable jury could conclude that the welcome text is produced and sent by an ATDS as the term is defined in the TCPA.”

Zeroing in on the FCC’s recent order describing the ATDS as “case-by-case” decision, the court entirely ignored the crux of the FCC’s directive on autodialers: “the basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Yahoo’s Messenger platform required the users to initiate the transmission of each welcome message, and the platform could not send thousands of welcome messages in a short period of time without the action of individual users. Thus, it should clearly fall outside the definition of an ATDS. This opinion is another example of the  unpredictability of litigation. We hope other courts will continue to see that individual human intervention for each call or message is all that is needed to avoid mischaracterizing the telephone or text messaging equipment as an ATDS.

Read more at our client alert here, drafted by Raymond Y. Kim, Zachary C. Frampton, Henry Pietrkowski, and Abraham J. Colman.