Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.

Question Presented

Whether the Telephone Consumer Protection Act’s (TCPA’s) autodialer restriction covers automated list-based campaign dialers, or if the TCPA only restricts use of dialers that generate telephone numbers.

Background

One of the main provisions of the Telephone Consumer Protection Act (TCPA) protects Americans from unwanted calls delivered through an automatic telephone dialing system (or autodialer). An autodialer is defined in the TCPA as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”

For decades, courts and the FCC interpreted the autodialer definition as including mass dialers that automatically dialed stored lists of telephone numbers. After the D.C. Circuit struck down the FCC’s autodialer definition for inconsistency, TCPA defendants began to argue that the autodialer definition required use of a random or sequential number generator. A circuit split evolved, with the Ninth Circuit siding with consumers and adopting a broad interpretation of the autodialer definition that included the most pernicious mass dialing systems.

In April 2021, the U.S. Supreme Court decided in Facebook v. Duguid that an autodialer must either use a random or sequential number generator to store telephone numbers to be called or use a random or sequential number generator to produce the telephone numbers to be called. The opinion rested primarily on the grammatical structure of the autodialer definition.

Since Duguid, many TCPA defendants have argued that the autodialer definition requires that the random or sequential number generator be used to generate telephone numbers. But the Duguid opinion itself never adopts this position, nor could it, because that was not the question presented in the case, nor was the issue fully briefed. To the extent that the Duguid opinion opines on the proper interpretation of “random or sequential telephone number generator,” it is internally inconsistent, citing legislative history and technical examples that support both sides of the argument.

The Case

Marina Soliman received several automated marketing text messages from Subway, the sandwich restaurant chain, even after requesting that the automated messages stop. Subway contracted with a Mobivity, which used a “blast platform” to send marketing messages en masse to a list of known telephone numbers.

Upon inspecting the dialer’s code, Soliman’s attorneys discovered that the dialer used a sequential number generator to automatically queue and cycle through the list of telephone numbers, which Soliman argued means that the dialer “store[s] or produce[s] telephone number to be called, using a random or sequential number generator” and its use is thus regulated by the TCPA’s autodialer restriction. Subway argued that the autodialer restriction only covers dialers that generate random or sequential telephone numbers. The district court agreed with Subway.

Soliman appealed to the Second Circuit, which split: two judges agreed to affirm, while one judge dissented, finding Soliman’s interpretation of the autodialer definition better supported by the rules of statutory interpretation and the technical understanding of number generators. Soliman has requested that the full Second Circuit rehear the case.

EPIC’s Brief

EPIC filed an amicus brief during the merits portion of the case arguing that callers who use certain mass dialing systems without consent violate the TCPA even after Duguid. EPIC pointed to the plain language of the statute, which does not require that the telephone numbers be generated by a number generator. EPIC also described, from a technical perspective, what random and sequential number generators are and how they work in automated mass dialers. EPIC explained that, without number generator technology, mass dialing systems could not automatically call large quantities of telephone numbers in a short amount of time with minimal human intervention.

EPIC also filed an amicus brief supporting rehearing en banc.

Legal Documents