• by Wendy Davis  @wendyndavis, November 24, 2014

A Philadelphia man who allegedly received 27,000 unwanted text alerts from Yahoo asked an appellate panel on Friday to reinstate his lawsuit against the company.

James Francis, the lawyer for cell phone user Bill Dominguez, argued at a 40-minute hearing that the deluge of unwanted messages was “precisely the type of automated harassment that was meant to be covered” by the Telephone Consumer Protection Act.

“This system is exactly the type of thing that Congress meant to regulate — an automated harassing system that can't be stopped,” he argued.

The legal battle dates to last year, when Dominguez sued Yahoo for allegedly sending him thousands of text alerts over the course of several months. The messages were all intended for the phone's previous owner, who apparently signed up for a former Yahoo service that converted emails to text messages and sent them to users' phones.

Dominguez said that Yahoo violated the Telephone Consumer Protection Act, which prohibits companies from using automated dialers to send SMS messages to consumers. He alleged in court papers that he complained about the messages to Yahoo, but was informed that only the phone's former owner could arrange to stop the texts. Dominguez said he doesn't know the former owner or how to contact that person.

When Dominguez threatened to resort to litigation, a Yahoo supervisor allegedly replied: “So sue me.”

U.S. District Court Judge Judge Michael Baylson in the Eastern District of Pennsylvania ruled in Yahoo's favor in March, when he granted the company summary judgment on the grounds that Yahoo'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.”

Dominguez is now asking the 3rd Circuit to reverse Baylson's ruling and reinstate the lawsuit. His lawyer argued on Friday that a dialing system doesn't need to generate phone numbers “out of thin air” to meet the definition of automated.

“All of the technology today that sends texts uses number that come from a list, or some source,” Francis argued. “They're not creating numbers out of thin air.”

Yahoo's lawyer, Ian Ballon, countered that its texting system system doesn't meet the TCPA's definition of an automated dialer.

Twitter, Path and other tech companies filed friend-of-the-court papers backing Yahoo in the battle. Those companies are asking the appellate court to define “automated dialing system” as equipment that can automatically generate -- as opposed to merely dial -- phone numbers.

Yahoo's attorney also said on Friday that when Yahoo rolled out the SMS alert feature, the company didn't expect that users would change their mobile phone numbers but fail to also inform Yahoo of the new number.

“This is a problem that Yahoo hadn't anticipated,” Ballon told the appellate panel on Friday. He added that the company “has learned a lot about its system from this problem” and no longer offers the email-to-text forwarding service at the center of this lawsuit.

Yahoo had argued in its papers that Dominguez could simply have asked his carrier to assign him a new phone number. The appellate judges indicated that suggestion wasn't satisfactory.

“Is that a simple solution?” asked Circuit Judge Jane Richards Roth. “A lot of people have my phone number, and if I ask to have it reassigned, that's a big pain in the neck for me.”

She added: “Why should he have to go through this big hassle?"