Spam Gripes Against Yahoo Junked by Judge

     (CN) - Yahoo is not liable for spam received by people with recycled phone numbers, such as one Pennsylvanian inundated with 4,700 unwanted messages, a federal judge ruled.
     When Bill Dominguez bought a cellphone in December 2011, he was assigned a phone number that had been previously held by another customer, according to the complaint.
     Though Dominguez soon complained to Yahoo about what he perceived as unsolicited email and text message alerts, Yahoo allegedly said it could not cancel the alerts without a request from its previous customer - whom Dominguez never met and had no way of contacting.
     In his federal complaint, Dominguez said Yahoo has no effective way of stopping unsolicited messages that it knows could result when a phone number associated with a customer is recycled.
     Dominguez sought $500 per violation of the Telephone Consumer Protection Act, plus treble damages, which would have totaled more than $7 million.
     Ajay Gopalkrishna, Yahoo's senior product manager for mail anti-spam and delivery, testified that the act only prohibits spam sent via an Automatic Telephone Dialing System using a random or sequential number generator, which Yahoo's equipment lacks.
     U.S. District Judge Michael Baylson awarded the website summary judgment March 20, despite comparing Dominguez's plight with some more famous tragedies.
     "Unwelcome circumstances have faced characters in literature and opera for centuries," the 11-page opinion opens. "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 Phillip of Spain, who marries Elisabeth to ensure peace with France.
     "In this case, plaintiff Bill Dominguez is also a victim of circumstance."
     Ultimately Dominguez's case fails because he has no evidence to dispute Yahoo's assertion "that its service could not randomly or sequentially generate telephone numbers," the court found.
     Baylson was not swayed by testimony from Dominguez's expert, Randall Snyder, that Yahoo's equipment can store or create cellphone numbers using a random or sequential number generator.
     "Mr. Snyder's definition of the term 'sequence' or 'sequential' fails to raise a material dispute of fact, since it focuses on the manner in which text messages are sent, not the way in which the numbers are generated," the opinion states.
     Baylson added: "Mr. Snyder conveniently added the additional disjunctive phrase 'or from a list of telephone numbers' to his declaration - a phrase that appears nowhere in the statutory definition of an [Automatic Telephone Dialing System] ATDS. The inclusion of this additional phrase is misleading. Moreover, including this additional language renders Mr. Snyder's declaration entirely unreliable on this point, since it does not address the necessary inquiry here: whether Yahoo's system constitutes an ATDS as defined by the statute."
     In refusing to hold Yahoo liable for damages, Baylson said Dominguez had "not offered any evidence to show that Yahoo's system had the capacity to randomly or sequentially generate telephone numbers (as opposed to simply storing telephone numbers), as required by the statutory definition of ATDS." (Parentheses in original).
     "The court thus finds that Yahoo did not send text messages to plaintiff via an ATDS and, therefore, judgment must be granted in favor of Yahoo," he continued.