District Court (Pa.) Says Yahoo!’s Texting System Was Not an ATDS under the TCPA

In Dominguez v. Yahoo!, Inc., 2017 WL 390267, at *20–22 (E.D.Pa., 2017), Judge Baylor granted summary judgment to Yahoo!.

Having discussed the expert reports proffered by the Plaintiff, the Court will now consider whether, if the expert reports were admissible, the reports considered together with the experts’ testimony at their depositions could establish a factual issue that the Yahoo system was able to generate sequential or random numbers and call those numbers. On this point, the Court concludes that even if the expert reports were admissible, they do not create a genuine dispute of material fact so as to prevent summary judgment.  Initially, Yahoo’s counsel at oral argument advocated an argument that the word “call” in the statute was not synonymous with other verbs that describe the text messaging system. The Court rejected these interpretations for the very simple reason, as any smartphone user knows that a “text” is “sent” to another smartphone only by using a telephone number. The smartphone does not have a “dial” the way a rotary phone does, but rather uses a “number pad” which appears on the smartphone when the user wishes to send a text, and the user inputs the numbers on the smartphone “pad” or “screen,” to which the text is intended, and after that telephone number is inserted on the smartphone, and the “send” button (or something similar) is pushed, the text message is then “sent,” “transmitted,” or “delivered” (any one of these synonyms is an accurate description) to the recipient smartphone. Eventually at the oral argument, see Hrg. Tr. 32, Yahoo counsel conceded that “call” was synonymous with the method of sending a text. Yahoo’s counsel did, perhaps correctly, assert that within Yahoo’s internal computer system, which may have been employed or employable by Yahoo, there is not any “transmission” that is synonymous with a “call.”  Yahoo contends that Plaintiff’s experts had not adequately shown any basis for the Yahoo system being able to both generate random/sequential numbers and “call” those numbers. At the oral argument, there was extensive discussion about whether the opinions of the Plaintiff’s experts were sufficient to warrant a factual issue that the Yahoo system had “latent capacity” to both generate random/sequential numbers and call them. The Court had noted this as a prime issue in the letter to counsel prior to the argument.  Plaintiff’s counsel initially cited the opinion, and affidavit, of one of its experts, Mr. Christensen, who had extensive experience as a telecom expert. Plaintiff’s counsel cited paragraphs 40-52 of the Christenson Report as establishing facts that would allow a jury to conclude that the Yahoo system had the “latent capacity” to satisfy the statutory requirement. Mr. Christensen states in the initial cited paragraph (¶ 40):  ” Furthermore, Yahoo documentation references “The Athena platform provides several API’s for MO and MT deliver”. It is my opinion that a computer programmer of normal skill could easily use one of the Yahoo API’s to transmit messages to the Athena Platform in conjunction with a sequential number generator or to cause text messages to be sent based on integration of a commonly available random number generator program.”  This expert report qualified its opinion by linking it to an Athena platform, and there was extensive argument about this reference to Athena. Initially, the Court had questioned whether the expert’s admitted inclusion of the Athena program, the effect of which has been disputed by Yahoo, would satisfy establishing a factual issue that Yahoo’s system had the requisite latent capacity. However, as the above paragraph demonstrates, Mr. Christensen’s report only concludes that a programmer using the Yahoo system could transmit messages to the Athena platform, “or to cause text messages to be sent …” (emphasis added). The use of the disjunctive in this paragraph is not consistent with the plain language of the statute, which uses the conjunctive “and” to connect the requirement of generating a random/sequential number and “call.” The same conclusion is true of the other paragraphs 42 through 51 in the Christensen affidavit, such as paragraph 51 which includes his conclusionary opinion on this issue as follows:  “It is my opinion that a computer programmer of normal skill could easily configure the system to interface with an application that uses a sequential number generator or to cause text messages to be sent based on integration of a commonly available random number generator program, which works in conjunction with the “Ad Module” to transmit messaging content similar to those received by the Plaintiff.”  Furthermore, in paragraph 52, Mr. Christensen again avoids the “genuine” issue in this case, when he talks about the latent capacity “to generate random and/or sequential ten digit numbers” but says nothing about ability to “call” those numbers.  In addition, Yahoo attacked the Christensen report as not being “reliable” or not being able to “fit” this situation because, at his deposition, Mr. Christensen was unable to identify any specific program that could be used for this purpose, and furthermore, he did not back up his opinion with any evidence of the statutory requirement of both generating random/sequential numbers and the ability to then call each of those numbers. See Christensen Dep. Tr. at 95:21-96:14.  The second expert on whom Yahoo relied for its argument about the “latent capacity” of the Yahoo system was Mr. Krishnamurthy, who also fails to give a firm opinion that the Court can find to be reliable or to fit the issues that the Yahoo system had the latent capacity to meet the statutory definition. See page 7 of his Report:  “I’ll also show 3 instances in the provided Yahoo SMS Service source code where these methodologies could be applied to modify the behavior of Yahoo SMS Service to generate random numbers or sequence of numbers.”   This expert, as well as Mr. Christensen, also discussed the Athena platform, which was identified within the Yahoo source code to which the expert had access as part of the supplemental discovery which took place after the Third Circuit remand. However, nowhere in the record, despite the argument of Plaintiff’s counsel, see Hrg. Tr. pp. 7-17, did this expert have any opinion that the Yahoo system had the latent capacity to both generate random/sequential numbers and call them. For example, the above summary of this witness’s conclusion only gives an opinion about the “latent capability to generate random numbers or sequence.” He says nothing about the concomitant requirement that the system be able to “call” those same numbers.  Yahoo also disputed reliance on this expert because he testified that it would take him four to five months of work on the Yahoo system to demonstrate the latent capacity. Yahoo appropriately characterizes this as a “re-engineering” rather than the type of modification that the Third Circuit held would be the focus of further inquiry on remand. As a result, even if reliable, Mr. Krishnamurthy does not offer an opinion that could create a factual issue for trial.   In conclusion, given that Plaintiff cannot point to any record evidence that sufficiently links a latent capacity to generate random or sequential numbers to the capacity to then dial those same numbers, this Court holds that even if the expert reports were considered reliable and admissible, Yahoo would nevertheless be entitled to summary judgment. The expert reports do not create a genuine factual issue regarding the Yahoo E-mail SMS Service’s capacity to generate and dial random or sequential numbers.