Court Clarifies “Human Intervention” in the TCPA after the FCC’s Declaratory Ruling

January 19, 2016 by Martha O'Connor, Associate
Just a few weeks ago, a district court in California recognized that under the July 2015 Federal Communications Commission (“FCC”) Declaratory Ruling there is no bright-line test for how much “human intervention” is required for a piece of equipment to avoid being classified as an Automatic Telephone Dialing System (“ATDS”). In Sherman v. Yahoo!, Inc., Case No. 3:13-cv-0041-GPC-WVG, 2015 U.S. Dist. LEXIS 167177 (Dec. 14, 2015), the Court considered Yahoo’s SMS Messenger Service, which permits registered Yahoo users to send instant messages to cellular phones using their computers. When the Yahoo user does so, Yahoo electronically scans its database to determine whether anyone has previously sent an instant message to that phone number. If not, the system automatically sends a “Welcome Message” via text along with the original instant message. The Plaintiffs complained that the Welcome Message violated the TCPA, claiming that it had been sent by an ATDS. Yahoo filed for summary judgment, arguing that its SMS Messenger Service was not an ATDS because the Welcome Message was “appended” to the Yahoo user’s original text message, which required “human intervention” to send. Such human intervention, argued Yahoo, meant its messenger service platform could not be an ATDS.

In denying Yahoo!’s motion for summary judgment, the Court relied on the FCC’s July 2015 Declaratory Ruling, which declined to establish a bright-line rule for determining how much human intervention is necessary to take equipment out of the definition of an ATDS. The agency held that “[h]ow the human intervention element [in determining whether or not a piece of equipment is an ATDS] 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.”  30 FCC Rcd. 7961, 7975 (2015). 

In applying the FCC ruling to the Yahoo case, the Court held that “a person will always be a but-for cause of any machine’s action,” and therefore a reasonable jury could find that the Welcome Message and the user’s text were separate messages, meaning that the Welcome Message, sent automatically by Yahoo, had been sent without human intervention – in other words, by an ATDS. This decision underscores the FCC’s Declaratory Ruling that there is no bright-line test for the degree to which a piece of equipment requires “human intervention” in order to be classified as an ATDS, making such assessments unpredictable and fact-based. Future decisions are likely to be nuanced and vary from circuit to circuit, making it even more important for potential TCPA defendants and their counsel to remain abreast of current developments in the law.

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