In Marina Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. (101 F.4th 176), the Second Circuit addressed critical questions regarding the definition of an “automatic telephone dialing system” (ATDS) and whether text messages fall under the TCPA’s prohibition against the use of an “artificial or prerecorded voice.”
Marina Soliman brought a putative class action against Subway, alleging that the company had violated the TCPA by sending her automated marketing text messages after she had opted out of receiving them. The United States District Court for the District of Connecticut dismissed her claims, concluding that the TCPA did not apply to Subway’s actions. Soliman appealed this decision, but the Second Circuit ultimately affirmed the district court’s ruling.
The court’s decision, authored by Circuit Judge Chin, made two pivotal determinations. First, it held that an ATDS under the TCPA is defined as a system that generates telephone numbers to be dialed, rather than one that merely uses a pre-existing list of telephone numbers. This interpretation aligns with recent decisions from the Third, Eighth, and Ninth Circuits, which have similarly concluded that the TCPA’s definition of an ATDS covers only systems that generate random or sequential telephone numbers. See Panzarella v. Navient Sols., Inc., 37 F.4th 867, 881-82 (3d Cir. 2022); Beal v. Outfield Brew House, LLC, 29 F.4th 391, 393 (8th Cir. 2022); Borden v. eFinancial, LLC, 53 F.4th 1230, 1231 (9th Cir. 2022). By affirming this narrower definition, the court has provided much-needed clarity for businesses using automated systems for marketing communications, emphasizing that the use of customer-provided data for targeted communications does not fall under the TCPA’s restrictions on ATDS.
Second, the court ruled that a text message does not constitute a “voice” within the meaning of the TCPA provision that bars making a call using “an artificial or prerecorded voice.” This clarification underscores that the TCPA’s restrictions on artificial or prerecorded voices apply strictly to audible calls, not text messages. This distinction is crucial for businesses that rely on text messaging for customer engagement, ensuring that such practices do not inadvertently violate the TCPA.
The procedural history of this case involved multiple layers of litigation. Initially, the District Court denied Subway’s motion to compel arbitration, a decision that was affirmed on interlocutory appeal. On remand, the District Court granted Subway’s motion to dismiss for failure to state a claim, concluding that the TCPA did not apply to the alleged actions. The Second Circuit reviewed this dismissal de novo and affirmed the lower court’s decision, providing a definitive interpretation of the relevant TCPA provisions.
This ruling is particularly impactful for businesses employing automated systems for marketing communications. By clarifying that the TCPA’s definition of an ATDS does not extend to systems dialing from pre-existing lists and that text messages do not qualify as voice communications, the court has established a clearer legal framework for companies to follow. This decision delineates the boundary between compliant and non-compliant practices under the TCPA, which is crucial for businesses using customer-provided data for targeted communications.
