Virginia resident Brian Glauser is appealing a decision clearing Microsoft's group-messaging app GroupMe of violating a text-spam law by sending people unwanted SMS messages.
Glauser alleges that GroupMe violated the federal Telephone Consumer Protection Act, which prohibits companies from using automated dialers to send text messages without first obtaining users' consent.
Earlier this year, U.S. District Court Judge Phyllis Hamilton granted GroupMe summary judgment, ruling that the company's text-sending system wasn't an “automated dialer,” which she defined as equipment that can dial numbers without “human intervention.”
In paperwork filed this week with the 9th Circuit Court of Appeals, Glauser indicates that the appeal will focus on how to define automated dialers for purposes of the anti-spam law.
Glauser alleged in his complaint that GroupMe sent him several unsolicited messages from a poker group, including an initial welcome text. One message, from “Mike L.,” notified Glauser that he had been added to the poker group. Subsequent texts included information about plans for scheduling a poker game. He argued that the initial welcome message violated the federal law.
U.S. District Court Judge Phyllis Hamilton ruled last month that the messages weren't sent by an automated dialer. Hamilton noted in her ruling that the messages were sent “as a direct response” to actions by Mike L., who created the poker group.
“Plaintiff has failed to raise a triable issue of fact as to whether defendant’s texting equipment had the capacity to dial numbers without human intervention, as required to be considered an 'autodialer,'” she wrote in the decision.
Questions about how to define automated dialers are at the center of several pending text-spam lawsuits, including a closely watched case against Yahoo.
In that matter, the 3rd Circuit Court of Appeals is now weighing Yahoo's liability for allegedly sending cell phone user Bill Dominguez 27,000 unwanted text alerts -- all intended for the phone's previous owner.
U.S. District Court Judge Judge Michael Baylson in the Eastern District of Pennsylvania ruled in Yahoo's favor last year, when he granted the company summary judgment on the grounds that the company's system isn't an automated dialer.
Baylson specifically ruled that there was no evidence that Yahoo's dialing system “had the capacity to randomly or sequentially generate telephone numbers.”
An appellate panel is now considering whether to reinstate Dominguez's lawsuit.