The District of Connecticut recently dismissed a TCPA action against the Subway Franchisee Advertising Fund Trust (“Subway”) because plaintiff failed to allege that Subway used an ATDS to send text messages to her cell phone. Soliman v. Subway Franchisee Advertising Fund Trust Ltd., No. 3:19-cv-592, 2022 WL 2802347 (D. Conn. July 18, 2022). The court held that “[t]he TCPA is clear: a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list.” Id. at *3 (emphasis in original). The ruling serves as yet another example of a dialing technology that does not meet the definition of an ATDS following the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171 (2021).
In Soliman, plaintiff alleged that she received a text message from Subway offering her a free bag of potato chips. Id. at *1. Plaintiff further alleged that she replied “STOP” to unsubscribe from the text messages but claimed that Subway texted her again a few days later. Id. at *1. Plaintiff subsequently filed a two-count class action lawsuit against Subway for negligently and intentionally violating the TCPA. Id. Subway filed a Rule 12(b)(6) motion to dismiss. Id.
The court initially noted that the TCPA prohibits a caller from “mak[ing] any call” to a cell phone “using” an ATDS, unless the called party has provided prior express consent or the call is made for emergency purposes. Id. (citing 47 U.S.C. § 227(b)). As readers of this blog are aware, the TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” See id. (quoting 47 U.S.C. § 227(a)(1)). In Duguid, the Supreme Court held that the phrase “using a random or sequential number generator” in the statutory definition modifies both “store” and “produce.” Specifically, the Court held that “[t]o qualify as an [ATDS], a device must have the capacity either to store a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential number generator.” Duguid, 141 S. Ct. at 1167, 1169-70.
Next, the Soliman court observed that the complaint alleged in “conclusory terms that Subway was using a random or sequential number generator” and determined that the allegation “must be evaluated in light of the additional facts that [plaintiff] claim[ed] to be true.” Id. In particular, the complaint alleged that the “numbers selected by Subway for text messages were derived in the first instance from a stored list of numbers.” Id. (internal quotations omitted). Plaintiff’s briefing attempted to explain that an “operator accesse[d] a database of consumer contact information and then the operator . . . load[ed] this data set into the dialing platform, at which point during a process called indexing a random or sequential number generator [was] used to select which numbers to store and which numbers to produce to the auto-dialer to send text messages.” Id. (internal quotations omitted). According to plaintiff, “[a] random or sequential number generator [was] simultaneously used to select and produce the indexed telephone numbers into the dialer, and [o]nce the number generator correspond[ed] to a matching number in the stored list, that telephone number [was] produced from storage to the dialer, which then automatically dial[ed] the telephone number.” Id. (internal quotations omitted).
The court held that even if plaintiff was correct about how Subway’s system worked, it would not qualify as an ATDS or violate the TCPA. Id. at *2. The court reasoned that when the TCPA “refers to a ‘random or sequential number generator,’ it means a generator of random or sequential telephone numbers—not a generator of random or sequential index numbers that are used in turn to select telephone numbers to dial.” Id. Under plaintiff’s theory, the court asserted, the TCPA “would likely cover every call placed by a computer or smartphone,” a proposition rejected in the Duguid decision, and it would “take a chainsaw to the nuanced problems [of robocalls] when Congress meant to use a scalpel.” Id. (emphasis in original) (internal quotations omitted).
Plaintiff’s brief also cited footnote 7 from the Duguid opinion and argued that the footnote somehow demonstrated that the TCPA covered Subway’s software. Id. at *3. In this footnote, the Supreme Court suggested that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Id. (quoting Duguid, 141 S. Ct. 1172 n.7). However, the Soliman court rejected this argument and concluded that the footnote is “ambiguous” because the Supreme Court “left open whether the telephone numbers on the ‘preproduced list’ were themselves generated randomly or sequentially.” Id. The Soliman court determined that Duguid did not support plaintiff’s argument and noted that “[c]ourts interpreting the TCPA post-Duguid have rejected the argument that [p]laintiff asserts here—that a device may be deemed an autodialer under the TCPA even if it uses a preprepared list of numbers, so long as the device randomly or sequentially chooses which numbers on that list to contact.” Id. Thus, the court concluded that “[t]he TCPA is clear: a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list.” Id. at *3.
Perhaps recognizing that her allegations may not meet the definition of an ATDS, plaintiff separately argued that Subway’s text message violated the TCPA because it was an “artificial or prerecorded voice.” Id. at *3. The court rejected the argument and held that “the [TCPA] has only one plausible meaning: text messages without an audio component are not prerecorded voices.” Id. The court reasoned that a “ʻvoice’ is a ‘[s]ound formed in or emitted from the human larynx in speaking.’” Id. (quoting Oxford English Dictionary (2d ed. 1989)). Thus, “a text message with no audio component does not qualify.” Id.
The Soliman ruling highlights that TCPA defendants should carefully analyze a plaintiff’s ATDS allegations at the outset of a case to assess whether the allegations satisfy the definition established in Duguid. The Soliman court determined that a device will not meet the definition of an ATDS merely because it generates random or sequential index numbers that are used to select which numbers to call from a stored list. Moreover, the court rejected plaintiff’s attempt to avoid the ATDS issue by alleging that Subway’s text message qualified as an “automatic or prerecorded voice.” We will continue to monitor these issues as the body case law applying the Duguid ATDS definition grows.