Third Circuit Allows Putative TCPA Class Action To Proceed, Citing FCC Ruling

On October 23, 2015, the Third Circuit vacated a summary judgment decision in Yahoo, Inc.'s favor based on a recent Federal Communications Commission ("FCC") order that expanded the definition of an "autodialer" under the Telephone Consumer Protection Act ("TCPA").  Dominguez v. Yahoo, Inc., No. 14-1751, slip op. at 9 (3d Cir. Oct. 23, 2015).

The plaintiff in Dominguez received a host of text messages from Yahoo on his cell phone, which came with a reassigned telephone number.  After successive efforts by the plaintiff to stop the texts, which ultimately totaled 27,809, the plaintiff filed a putative TCPA class action against Yahoo.

The TCPA provision at issue in Dominguez is 47 U.S.C. § 227(b)(1)(A)(iii), which prevents  persons in the United States from making "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