Aligning itself with three other federal appellate courts, the Second Circuit recently made clear in Soliman v. Subway Franchisee Adver. Fund Trust, Ltd., No. 22-1726-cv, 2024 U.S. App. LEXIS 11417 (2d Cir. May 10, 2024), that a defendant who sends text messages to mobile numbers selected from a list does not violate the Telephone Consumer Protection Act’s (TCPA) prohibition on using an automatic telephone dialing system (ATDS or autodialer), unless the system uses a random or sequential telephone number generator.1
At issue in Soliman were marketing texts sent to the plaintiff using what plaintiff characterized as an “SMS blaster” – a dialing platform that used software code to generate and assign index numbers to telephone numbers already in a database. The platform then allegedly used a campaign algorithm to select particular indexed telephone numbers from the database and “blast” messages en masse to mobile phone users.
The plaintiff in Soliman hung her hat on footnote 7 from the Supreme Court’s 2021 landmark decision in Facebook v. Duguid, arguing that the “random or sequential number generator” requirement can be satisfied, even if dialing from a list of phone numbers, through the use by the dialing platform of a software tool that sequentially generates any type of number. The plaintiff alleged that defendant utilized a “blast platform” that employed “an algorithm whereby a random or sequential number generator . . . selects which number to dial from the stored list of numbers, and sequences those numbers in order to automatically dial the numbers” and send text messages.
The Second Circuit soundly rejected the plaintiff’s “footnote 7 argument” finding that the plaintiff took the footnote out of context and misread its significance, particularly when read in the context of the remainder of the Court’s opinion. The court also joined the Third, Eighth, and Ninth Circuits (see Panzarella v. Navient Sols., Inc., 37 F. 4th 867 (3d Cir. 2022); Beal v. Outfield Brew House, LLC, 29 F.4th 391 (8th Cir. 2022); Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022)), holding that the lynchpin of the autodialer definition under the TCPA is the equipment’s ability to sequentially or randomly generate telephone numbers.
Soliman is a significant victory for entities that call or text mobile numbers, whether for telemarketing or informational purposes, as it further shut the door on a reading of the ATDS definition being pushed by the plaintiffs’ class action bar.
We think there are also two additional key takeaways from the Soliman case. First, if you’re using dialing equipment that calls or texts numbers from a list, seek advice from your counsel and other professionals on which side of the line your dialing platform potentially falls on.
The second takeaway from Soliman, which we haven’t touched on until now, is that it appears to bolt shut the already tightly closed door on the theory that text messages are pre-recorded voice calls subject to the TCPA prohibition on pre-recorded calls to wireless numbers (absent consent or an emergency purpose). The Ninth Circuit also rejected this theory in Trim v. Reward Zone, USA LLC, 76 F.4th 1157 (9th Cir. 2023). We think this one is a no-brainer and could hardly be more obvious. If you want to read more, check out our blog post on Trim here.
1 The TCPA prohibits calls or texts to mobile numbers using an “automatic telephone dialing system” absent consent of the called party or an emergency purpose. Under the TCPA, an ATDS “means 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.”
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