Dominguez ex rel. Situated v. Yahoo, Inc., 14-1751

• Decision Date: 23 October 2015
• Docket Number: No. 14-1751,14-1751
• Parties: BILL H. DOMINGUEZ, on behalf of himself And all others similarly situated, Appellant v. YAHOO, INC.
• Court: U.S. Court of Appeals — Third Circuit

BILL H. DOMINGUEZ,
on behalf of himself And all others similarly situated, Appellant
v.
YAHOO, INC.

No. 14-1751

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued November 21, 2014
October 23, 2015

NOT PRECEDENTIAL

Appeal from the United States District Court for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-13-cv-01887)
District Judge: Honorable Michael M. Baylson

Before: AMBRO, SCIRICA, and ROTH, Circuit Judges

James A. Francis, Esq. [Argued]
David A. Searles, Esq.
John Soumilas, Esq.
Francis & Mailman
100 South Broad Street
Land Title Building, 19th Floor
Philadelphia, PA 19110
Counsel for Appellant

Ian C. Ballon, Esq. (Argued)
Lori Chang, Esq.
Greenberg Traurig
1840 Century Park East, Suite 1900
Los Angeles, CA 90067

Page 2

Brian T. Feeney, Esq.
Greenberg Traurig
2001 Market Street
Suite 2700 Two Commerce Square
Philadelphia, PA 19103
Counsel for Appellee

Brian Melendez, Esq.
Dykema Gossett
90 South Seventh Street
4000 Wells Fargo Center
Minneapolis, MN 55402

David H. Kramer, Esq.
David J. Strandness, Esq.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304

Tonia Ouellette Klausner, Esq.
Brian M. Willen, Esq.
Wilson Sonsini Goodrich Rosati
Professional Corporation
1301 Avenue of the Americas, 40th Floor
New York, NY 10019-6002
Counsel for Amicus Appellees

OPINION^*

AMBRO, Circuit Judge

Bill Dominguez appeals the District Court's grant of summary judgment in favor of Yahoo!, Inc. on his claim that Yahoo violated the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227, by sending him approximately 54 unsolicited text

Page 3

messages per day over the course of 17 months. We decide whether the District Court correctly concluded that no reasonable juror could find Yahoo's text-messaging system to qualify as an "automatic telephone dialing system" under the statutory definition. In light of the intervening statutory interpretation by the Federal Communications Commission ("FCC"), we vacate and remand for further proceedings.

I. BACKGROUND

In December 2011 Dominguez bought a cell phone that came with a reassigned telephone number. The previous owner of the number had subscribed to an email-notification service offered by Yahoo. That service sent a text message to the owner's phone number every time an email was sent to the owner's linked Yahoo email account. Because the previous owner never cancelled his subscription when the number was reassigned, Dominguez inherited the prior owner's text-message notifications when he bought his new phone. Each time a new email reached the previous owner's inbox, Yahoo's system sent a text-message notification to Dominguez's phone.

In short order the messages began piling up. Dominguez first unsuccessfully tried to put a halt to them by unsuccessfully replying "stop" and "help" to some texts. Then he sought out Yahoo's customer service for help but was told that the company could not stop the messages and that, as far as Yahoo was concerned, the number would always belong to the previous owner. Having exhausted the company route, Dominguez called a representative from the FCC, who then participated in another call (with Dominguez on the line) to Yahoo's customer service. When this too failed to stop the messages,

Page 4

Dominguez filed complaints with the FCC and the Federal Trade Commission, yet again to no avail.

Having received 27,809 text messages over 17 months, Dominguez filed a putative class action under the TCPA, which forbids "any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system ['autodialer'] . . . to any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). A successful plaintiff under the TCPA is entitled to $500 in damages per violation. 47 U.S.C. § 227(b)(3)(B). Therefore, Dominguez stands to win $13,904,500. Yahoo moved for summary judgment. It argued that the statute requires an "autodialer" to have "a random or sequential number generator," Id. § 227(a)(1)(A) & (B), and its text-messaging system did not generate numbers at all; instead, it dialed numbers from a compiled list.

In response, Dominguez argued that, while one meaning of "sequential" is "in numerical sequence," an autodialer might also meet the statutory definition if it dials non-sequential numbers in a sequential manner (i.e., by placing them in a queue and dialing them one at a time). Alternatively, he argued that the FCC has interpreted the statute to cover "any equipment" with the capacity to "generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 ("2003 FCC Ruling"), 18 FCC Rcd. 14,014, 14,092 (July 3, 2003) (emphasis added).

Page 5

...