A Philadelphia man has applied to the Court of Appeals to revive his lawsuit against Yahoo, in which he claimed the company sent thousands of unwanted messages when he purchased a used phone from T-Mobile.
The original lawsuit claimed Yahoo had violated the Telephone Consumer Protection Act (TCPA) by using automated dialers to send SMS messages without the recipients’ consent. But Yahoo denied the charge, asserting that they did not rely on auto dialers – a claim upheld last year by U.S. District Court Judge Michael Baylson. In a brief filed last week with the 3rd Circuit Court of Appeals, Yahoo stated:
“Messages sent through the email SMS Service were not sent randomly, in bulk or to sequential numbers – only to specific phone numbers manually inputted by individual Yahoo users.”
The company has requested that the appeals court dismiss the lawsuit, in which the plaintiff says he received dozens of messages every day after he bought the phone. His complaint indicates that the previous owner had agreed to receive SMS alerts from Yahoo whenever a new email was delivered to his inbox.
The complainant (who does not have a Yahoo account) says he received close to 5,000 SMS alerts from Yahoo in the five months prior to filing the lawsuit. He allegedly lodged a complaint with the company, but was told that only the previous owner of the phone could arrange to stop future texts.
In the most recent appellate papers, Yahoo suggests that the plaintiff should have gone to T-Mobile to get a new number.
It might look like game, set and match to the web giant, but there’s a twist in this tale: another lawsuit resulted in a different judge ruling that Yahoo’s SMS delivery system did constitute an automated dialer. A Californian resident alleged that Yahoo informed him via SMS that he had received an instant message from someone else – but the plaintiff had never given the company his cell phone number or opted in to receive text messaged from them. The judge specifically rejected Yahoo’s argument that it didn’t use an automated dialer to send the complainant a message. The complainant denied Yahoo’s request to reconsider the ruling.