• by Wendy Davis  @wendyndavis, July 8, 2013

Yahoo is asking a federal judge to dismiss a lawsuit accusing the company of sending thousands of SMS messages to the wrong person.

The company argues in recent court papers that the lawsuit is a “lawyer-driven attempt ... to take advantage of a potentially lucrative statutory damages provision.” Yahoo has asked U.S. District Court Judge Michael Baylson in Philadelphia to award the company summary judgment.

The case was filed earlier this year by Philadelphia resident Bill Dominguez, who says he was deluged with unwanted SMS messages after purchasing a used smartphone from T-Mobile. The previous owner apparently had arranged to receive SMS alerts from Yahoo whenever he received emails.

Dominguez alleges in his class-action complaint that he asked Yahoo to stop sending him the text messages, but was told by a company supervisor that only the phone's former owner could arrange to stop the texts. Dominguez -- who says he received a total of more than 8,000 SMS alerts from Yahoo in a 17-month period -- alleges in court papers that he tried to explain that he doesn't know the former owner and can't contact him.

He alleges in his lawsuit that Yahoo violated the Telephone Consumer Protection Act by sending the messages. That law prohibits companies from using auto-dialers to send ads to people's cell phones, without first obtaining their permission. That law provides for damages of up to $500 per violation.

Yahoo argues in its motion that its SMS alert service does not use an automated dialer, and therefore the messages don't fall within the federal law. The company also says the alerts were not ads, but messages the previous owner requested.

Dominguez counters that other courts have defined automated dialer to include the type of system Yahoo uses. He also says that the previous owner's consent to receive messages doesn't clear Yahoo of liability. A federal appeals court in Chicago recently ruled that sending messages to “bystanders” who are using reassigned phone numbers can violate the Telephone Consumer Protection Act, even if the intended recipients consented.

In that case, the Seventh Circuit Court of Appeals ruled that a debt collector who called the wrong recipients could be sued for violating the federal consumer protection law -- which applies to voice calls as well as text messages.

Baylson has scheduled a conference in the case for July 19.