The Telephone Consumer Protection Act was abused again earlier this month to bring suit against Yahoo!. Responsible for increasingly clogging up courts, the TCPA has been used aggressively against debt collectors and telemarketers, the intended target industry – but it’s curious to find a suit on a friendly text message. Yahoo! offers instant message users the ability to receive a text message notification of an instant message. The tool also allows people who do not own a mobile phone to send and receive text messages for free. The first message plaintiff-Sherman received was, “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or to go y.ahoo.it/imsms.” The second message, apparently from a friend stated: “Hey get online I have to talk to you.”
If the recipient has not previously been sent a computer to phone message, then the recipient is sent a single automatically generated notification message. This unsolicited message is the willful violation of the TCPA that a federal court in California has determined may warrant statutory compensation. The 2013 Amendments to the TCPA made it illegal to make any call to a cellphone, including sending a SMS, illegal without the express prior written consent granted to the caller which is made using an Automatic Telephone Dialer System. The statutory definition of an ATDS makes it clear that the law was aimed at preventing telemarketers from reaching people by using randomly generated, or sequentially dialed (000-0001, 000-0002) phone numbers. After receiving these two messages, Sherman initiated suit against the company under the TCPA in a federal district court in Southern California.
A relic of an era populated with fax machines and brick-sized cellphones with callers concerned about their limited minutes of talk time, the TCPA aims to limit costs imposed on cellphone and fax users by advertisers. In practice, it’s been used to extract money from companies that aim for efficiency through technology or provide free telecommunications services. Designed for victims to easily bring claims in small claims court.
The TCPA affords a $500 statutory remedy for negligent violations, and $1,500 for willful violations. But a cottage industry of attorneys has developed around TCPA litigation because these statutory penalties are per call, and may be brought as a class action.
My friends never send me $3,000 claims against anyone.
The federal district court hearing the claim against Yahoo! finds that ATDS has a very broad definition, anything that has the capacity to store or produce numbers to be called using a random generator or from a list—basically any computer. Essentially, if the caller’s fingers did not physically punch the telephone number into a phone immediately before the text was sent to Sherman, this district court would find the SMS subject to the TCPA.
It’s tough to argue that having a friend without a cell phone send a SMS is the type of harm that Congress intended to be remedied with the TCPA. The opt-out requirement of the TCPA, we’re all familiar with, sending “STOP” to spammers, was fulfilled in this case. Clear abuse of the TCPA stifles innovation and efficiency by penalizing a company providing a valuable and free service, but also brings attention to the absurdity of some applications. Maybe Sherman is just pointing out how outmoded the TCPA can be.