A recent opinion from the Southern District of California
suggests that now there is no bright-line rule regarding what
qualifies as human intervention for purposes of determining whether
an autodialer was used. In denying a motion for summary judgment
filed by Yahoo, the court found that:
"there are genuine issues of fact as to whether the
[Messenger platform] is an ATDS. A reasonable jury could conclude
that the welcome text is produced and sent by an ATDS as the term
is defined in the TCPA."
Zeroing in on the FCC's recent order describing the ATDS as
"case-by-case" decision, the court entirely ignored the
crux of the FCC's directive on autodialers: "the basic
functions of an autodialer are to dial numbers without human
intervention and to dial thousands of numbers in a short period of
time." Yahoo's Messenger platform required the users to
initiate the transmission of each welcome message, and the platform
could not send thousands of welcome messages in a
