EPIC & NCLC Urge Second Circuit to Rehear Case About Automated Call Protections

June 4, 2024

EPIC and the National Consumer Law Center (NCLC) have filed an amicus brief urging the full Second Circuit to rehear Soliman v. Subway, a case about whether the Telephone Consumer Protection Act’s autodialer restriction protects against automated calls or only randomly dialed calls. The three-judge panel that originally heard the appeal split on the issue: two judges said only randomly dialed calls are covered, while one judge said that the autodialer provision provided greater protections, citing heavily to EPIC’s previous amicus brief in the case. The Second Circuit panel is the second appellate court panel to split on the scope of the TCPA’s autodialer protections since the Supreme Court’s 2021 decision in Facebook v. Duguid.

The TCPA’s autodialer provision protects phone users from the nuisance and invasiveness of automated calls. The TCPA defines an autodialer 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, the FCC used the autodialer restriction to regulate dialers that automatically dialed through large customer lists under the theory that “using a random or sequential number generator” only applied to “produce” and not “store.” In Duguid, the Supreme Court said that a dialer could not be considered an autodialer under the TCPA unless it used a random or sequential number generator. Litigation following Duguid has focused on whether the number generator must generate the telephone numbers called, in which case the provision only covers dialers that randomly call numbers, or whether the number generator could be used to automate the dialer’s queuing process, as is the case in many automated mass dialers used to spam customers.

In its amicus brief supporting rehearing in Soliman, EPIC and NCLC explain that “the public interest in reviewing the panel decision is great” because the panel decision “leaves Americans vulnerable to an onslaught of calls that are ‘inconvenient and costly to consumers,’” quoting Judge Nardacci’s dissent from the panel decision. EPIC and NCLC argue in the brief that the panel majority made several statutory interpretation errors: the panel majority erroneously inserted the word “telephone” into the statutory phrase “random or sequential number generator” and also ignored Supreme Court precedent that technical terms in a statute be given their technical meaning. Because “random or sequential number generator” has a “well-established” technical meaning as a computational tool that can generate any kind of number, the panel majority was wrong to limit how an autodialer can use a number generator. 

EPIC and NCLC are leading advocates for consumer protections against abusive calls and routinely file amicus briefs in relevant litigation.

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