By Saranac Hale Spencer, The Legal Intelligencer

Yahoo’s system for automatically texting its users when their email accounts have received a new message doesn’t violate the federal law that protects consumers from unsolicited calls, a federal judge has ruled.

U.S. District Senior Judge Michael M. Baylson of the Eastern District of Pennsylvania granted summary judgment to Yahoo in a proposed class action brought by Bill Dominguez, who was given a recycled phone number when he bought a cellular telephone. The person who had the number before him had signed up for Yahoo’s program that alerts its users to new email messages through a text message. Dominguez would get the texts although he had never consented to the program.

The crux of the decision turned on the technical properties of Yahoo’s alert system and the definition of an automatic telephone dialing system, which is prohibited for use as an automated telemarketing tool under the Telephone Consumer Protection Act (TCPA). That is the federal law under which Dominguez brought his suit.

Baylson framed his opinion this way: “Surely, one of the unwelcome consequences of the digital age are unsolicited messages, telephone calls, and emails. However, this phenomenon is not new. Unwelcome circumstances have faced characters in literature and opera for centuries. Victims of circumstance are often portrayed by Shakespeare—Hamlet, Othello, Shylock; and in opera, Verdi’s Don Carlos, who without fault, loses his fiancée, Elisabeth of Valois, to his own father, King Philip of Spain, who marries Elisabeth to ensure peace with France.”

“In this case, plaintiff Bill Dominguez is also a victim of circumstance,” Baylson said.

Yahoo didn’t contest that Dominguez got unsolicited text messages because the person who had his number before him had signed up for the alert service, but it did argue that its system isn’t an automatic telephone dialing system (ATDS).

The law defines an ATDS as a system that has the capacity to store or produce phone numbers using a random or sequential generator and then dial the numbers, according to the opinion.

Yahoo argued that its program doesn’t use a random or sequential number generator.

Dominguez, however, “argues that courts must look to the system’s capacities, not the way in which it is actually used, and argues that the capacities of Yahoo’s system fall within the statutory definition,” according to the opinion.

He offered to the court a purported expert, Randall Snyder, who failed to convince the judge that Yahoo’s system would qualify as an ATDS that is barred by the law.

For more on this story go to: http://www.thelegalintelligencer.com/id=1202647777048/Automatic-Texts-From-Yahoo-Don%27t-Violate-%27Do-Not-Call%27-Protection#ixzz2wc8Ait4M