order granting summary judgment tiago the district court erred because it applied an erroneous and excessively narrow reading and definition of the term automatic telephone dialing system to the successfully been able to do in the past which is hit stop work or reply or help as a text in response which works for most text messaging platforms that are run of the mobile marketing s correct understanding on my car a judge wrote that you're correct that there's nothing on his part that was was at fault at all that he took as many steps as he could that he knew of to stop the problem i don't know that was bureaucracy that was the issue as much as a  technology that was not compliant with the c p a or the local marketing association which provides that they have to have a mechanism to allow these things to stop and press reply or stop it stops or unsubscribe your honour's might see in even e mails that you get similar context that you can hit unsubscribe or or stop that was not implemented at yahoo for whatever reason they could have implemented it they didn't that's in the record but what happened here was that the district court looked at the term sequential number generator and defined that in a way to only include numerically ascending numbers rather than other types of sequences such as chronological sequence of alphabetical sequences there is nothing in the plain reading of the statute or the statutory definitions which restricts sequential number generator to only that type of technology that he was not here after generally right it was just a hard you're right in terms of what generation means under the statute there is no definition of generator so you look at the dictionary definition which is simply to produce in this regard their system produced the number after your honor is correct that originally a subscriber a user signed up for and elected to to the service there after that those those numbers  restored their efter the text and the numbers were generated by the system and i think what your honor is asking which is which is which is a great question it is in terms of generators that this is the system how to generate the number from scratch or out of thin air and the answer is no and in fact if it did if that requirement were applied none of the case it's that we have cited or that had before the court what it would be a t t s cases right engager your honor knows because you were on that panel engager the number was not created by the system it was input it came from the consumerist application to dealt in this case it came from the consumer's contacts all of the technology today that sense texts uses numbers that come from either a list or come from some other source they're not creating numbers out of thin air let me let me ask you this judge nelson says opinion he says that mr snyder added to the statutory definition a phrase or from a list of telephone numbers and that that was an improper way of defining the statutory section tell me why that's wrong and why it's wrong is because in mr snyder's declaration he doesn't say that's such a tory definition he does use that as that as a cynic as the state of the law because what he's relying on is the f c c rules and regulations and the guidance over the last ten years in which the f c c has repeatedly held that devices that call from a list as opposed to creating numbers out of thin air are covered as a t v s systems that are in a predictive systems there  respect to this particular case they are to the extent that the f c c has repeatedly held in looking at in predictive dialers that the operative question is whether or not the system has the capacity to dial work in this case text without human intervention that is clear from what the f c c has said it did not restrict that that reasoning just a predict position is that under the hobbs act or the administrative orders act the district court was not permitted to disregard the f c c rules and regulations in this in this matter that that is something only this court can do now when you look at the regulation that the regulation talks about ata a t t s and the terms a t v s and auto dialer mean equipment which has the capacity to store or produce telephone numbers to be called using a random or sequence will number generator and to dial such numbers then you've got the preamble which goes more broadly than that which is the capacity to dial numbers without human intervention w we believe that even on the plane reading got it we're covered because if you just apply the dictionary definitions and in this case this is why it's important that this court looks at the f c c the term sequential number generator sequence and number and today that's why you had a few dozen a clarification yes your honor this because that is very clear if you look at the congressional record that congress wanted the f c c to address and deal with future technologies the technology that is being used t than thirty seconds later my kids are fairly young you're on i have that problem but you'll be there so but i would ask the court respectfully to look at the purpose of the statue why was it passed it was designed to prevent harassment by an automated system that is what happened here this means the same kind isn't it perfectly easy if congress wants it to say that  regulations this that evidence here shows a system the falls within the playing reading of the statute this is a this was a system that generated the numbers to be texted there's no question about that but for this system those e mails would have come in then just stopped so what causes them that the number to be texted would cause the number to be text that was yahoo's technology that looked at it system had filters used internal servers and it was run by software program they admit and there's others real question here that it said that it created the numbers one database asked the other database for the number that that database the u d b database at yahoo produced to the number two the s was it's based on the email but that's not what the email was and then it it has a program by which it determines the sequence which is largely chronological and i would ask this court to go back to the dictionary sequential nene's into the webster's new world dictionary the following of one thing after another in chronological causal or logical order that is exactly what happened here the district court for whatever reason didn't want to only consider numerically ascending se about yahoo saying sue me about the f c c intervening none of that is actually in the record this is a summary judgment motion it was focused very narrowly on a t v s it is understood the facts are in this that the system cannot generate numbers at all so the only way the plaintiffs can win and have this case reversed is if this course is inclined to expand the statue or if one of the working backwards what if you have a preamble that says the capacity to dial numbers without human intervention and it is a cross on the regulation and it's how the f c c interprets the statute well first of all i think it's very clear if you look at the c f r definition that that the preamble didn't make it into the definition if you look at forty seven c f r section sixty four dot one two zero zero subsection f two the only definition is the terms automatic telephone dialing dialers are a t d s and they are so even though you call numbers from list discrete identified numbers rather than randomly but and three that touched on the key thing with a  s is the capacity to dial numbers without human intervention he's coming back if that's correct this is without human intervention well actually i would dispute that because actually the messages in this case are not set without know you have you're absolutely correct there's no question the number of the number was reassigned he did not participate he had a simple remedy and that's actually on the record plaintiff's expert mr snider conceded that the simple remedy was to go back to your mobile and  actually in this case the plate this plate this allege that these tech started on day one when the plaintiff got got the phone so yes it would be a big hassle if the day any of us had to change longstanding numbers but when you get a new phone phone with them to call yahoo and they couldn't get it resolved you're telling me that you don't know that's there's there's no evidence of that in the case the plaintiff is raising are you disputing that yes the put the plaintiff has made that allegation we never got to that issue because the summary judgment motion was focused very absolutely and under the hobbs act there is no question that any court can determine whether that whether the regulation applies if the f c c actually was going to change the statutory definition of a t v s which is which is a very significant thing to change the definition in the statute it would have it would have that would be reflected in the c f r that we are looking at his his three paragraph sort of two hundred twenty five paragraphs were excuse me a few pages that one hundred twenty five page report that an act of congress where a specific rule making authority of the f c c come back and deal with mr francis is going about you don't have to get to the preamble that this is a sequential number generator by definition there's no generation of numbers at all to get it to get to mr francis when he's relying on mr snyder's definition of sequential meaning not meaning not simultaneous the problem with that definition as mr snyder freely admit is there is no known technology in existence in the united states today that would that would not send text messages based on this definition if you define sequential in the way that mr snyder asks first of all he testified that would also encompasses random meeting that you'd have to read the statute as having redundant or landed in sequence or he sequence will to include random the term the term is superfluous but it would mean every mobile device every single mobile device in the country and mr snyder admitted that under that definition if i send a text message ok and by and his phone has changed he hasn't told me then i have strict liability under the statute for statutory damages because he changed his when he got an f c c representative mic are with him again you say that's not in the record but it's a person who's getting these notifications thousands of times you're going to regard to somebody else's tax your honor the only thing in the record is seven messages i understand the allegation is tens of thousands the only thing actually introduced in the record are seven text messages and yes certainly absolutely if our contention is if mr could make us actually contacted yahoo and provided the phone number because again otherwise yahoo would not have a way to do it they could have done this but could have easily i said a different job done could have done what i mean he could have blocked it which is also what he could have done based on his mean because any time any any system using software has an automatic feature to it and if human intervention would preclude any kind of automatic feature then the f c c would be saying that every text message  regardless of how it's sent would come within within the scope of the statute and the only kind of text message that would be excluded is if someone hand writes something on a piece of paper and delivers it by met by messenger that can't be the case there was a human being that that had to send an notification goes to this particular number and somehow we got who's unable to disable this this number from getting the notifications of text to someone else this is part of the problem of trying to divine terms that were not not cease to be an atheist simply because those features are turned off and it actually in fact dials from a list of numbers that's what the f c c ruled in two thousand and three and in the footnote in two thousand and eight when the f c c refers back statute i don't believe so i think it's stretches the f c c ruling to the breaking point first of all this is this is a very unusual circumstance this is not a service that people don't want this is actually a free service that people do want i mean opinion you're absolutely right you're you're absolutely right your honor but what i'm thing is this is a very unusual circumstance this is not a widespread problem this is a problem of an individual who had to reassign phone number and that's where the you know the problem arises but the thing is to tell you you know you raise a red flag when you say that to me has had a remedy which was to changes number are you saying that the system has the capacity to block  these texts if if it were notified i mean that's an interesting question that was that again we didn't get into because we wrote with i'm asking you but you know i mean to my knowledge that if the number was provided then that it would be possible the problem is that the numbers are based on yahoo accounts yahoo did not anticipate this type of problem ever arise because it's a free service that people signed up for they had not anticipated the problem  lawsuit really on him for not doing any responsibility he have to change that no no you're absolutely right he had no responsibility i'm saying he didn't have a simple remedy which even play this expert acknowledge which is on the day this started which but the next person who gets that number is going to have the same problem to may not just be as as committed as mr jamaica's is to writing the problem i mean if you believe what was said i mean he got person gets that number i agree completely this is a problem though that yahoo had and this is a problem the congress had and perhaps there's a need to amend the statute i believe there is a petition and being at the f c should issue a different ruling and certainly a company like yahoo which did not anticipate this problem has learned a lot about its about its system from this problem and b the service it isn't offered anymore but for hope the preamble says that it is the capacity to download it without human intervention that hasn't changed but that was that was addressing a very specific context which was a grabbing the s e c has never said human intervention with out the requirements of the statute is sufficient indeed in the footnote in two thousand and eight the f c c is very clear in saying a system that has the requisite capacity the requisite raises if you would address the point that your opposing counsel makes that someone the prior owners set up something or someone initiated a text create a text they had not sent a text they sent an email to somebody who had to try to get some point to the system yahoo alone created the text that was sent that was generated and sent in the sequence no matter to mr dom cell phone and that was done automatically that's what the district court admitted it will argument the district court agreed with me that yahoo's system sent numbers sequentially that's in the record nine twenty one district court agreed that there was no human intervention and that yahoo system sent text messages to those numbers without human intervention that's an actually get tenure that's a nine so mr ballen is just simply arguing a record that it's not here he's arguing something else he keeps saying that things that it's undisputed that this system doesn't have the capacity to generate numbers but the district court agreed that it was one of the other significant point he made was that the preamble is the preamble to the rule that i mean the f c c repeats it again that is the question and the hallmark of an eighty d s the essence of an a t v s is the capacity to dial without human intervention and to the extent that we're arguing times in the statute and where we have questions about what those terms mean and what technology is meant to be covered that is why the f c c that's why congress delegated the f t c to make these rules because technology changes changes every six months every year ten years every twenty years so it's important and essential congress knew that because technology change it's important for this court to look at what the f c c has to say and it's we find it a little bit off putting that yahoo would argue that there's no record that they've had they have not had an opportunity to take a step position about all these disputes that he made but they move for summary judgment within the first two weeks this case was was other courts out throughout the country have looked at these issues look at the griffith decision right there the griffith court and look at the cert case i mean there's there's a reason that path that the defendant  reach in this case right because if the district courts narrow application of sequential number generator to only a device that sends text to numbers in an ascending order is upheld and like this where there's no off switch right that's one of the the essential features here there's no off switch there's no way to stop this or why because there's no human being on the phone there's nobody to say hey please stop there's nobody there it's just the machine that's clearly what was going to be covered here give you thirty seconds that i'm thinking or i would just ask the court to to seriously consider the arguments that we have made and look at the implications of upholding the district court's decision because as i've said and i don't mean to repeat myself but it's a very important point the technology here sending out that would only cover technology which sends a text and call our second case of this morning