Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.
101f4th176
| 2d Cir. | 2024Background
- Plaintiff Marina Soliman sued Subway Franchisee Advertising Fund Trust (Subway) after receiving marketing text messages sent via an automated system, allegedly in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
- The messages were sent using SMS technology to a list of pre-existing phone numbers, to which Soliman had voluntarily subscribed by opting in to receive Subway offers.
- Soliman claimed that Subway continued to send her messages even after she texted "STOP" to unsubscribe.
- The district court dismissed Soliman's complaint, holding Subway's technology did not qualify as an automatic telephone dialing system (ATDS) under the TCPA, and text messages did not use an "artificial or prerecorded voice."
- On appeal, the Second Circuit affirmed the dismissal, interpreting the statute in line with recent Supreme Court and other circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Subway's system is an ATDS under TCPA | System qualifies as ATDS if it uses a random/sequential number gen. | Only systems that generate phone numbers, not select from stored lists, qualify as ATDS | Not an ATDS; stored list use does not qualify |
| Whether TCPA's "artificial or prerecorded voice" applies to texts | Texts are covered as artificial/prerecorded voice | "Voice" means audible/human sound; texts are not covered | "Voice" means audible sound; texts not covered |
| Impact of Supreme Court's Duguid decision on definition of ATDS | Duguid allows broader def. of ATDS incl. random selection from lists | Duguid requires generation of phone numbers, not just selecting from lists | Duguid requires number generation, not selection |
| FCC regulatory interpretations’ weight | FCC rules support broader ATDS definition, including predictive dialers | FCC guidance unclear/overbroad, should not override statute/text | FCC rules ambiguous; not determinative |
Key Cases Cited
- Facebook, Inc. v. Duguid, 592 U.S. 395 (2021) (automatic telephone dialing system under TCPA must use a random or sequential number generator to store or produce phone numbers)
- Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022) (ATDS does not include systems selecting from pre-existing lists)
- Panzarella v. Navient Sols., Inc., 37 F.4th 867 (3d Cir. 2022) (system calling from specific lists not covered by TCPA’s ATDS definition)
- Beal v. Outfield Brew House, LLC, 29 F.4th 391 (8th Cir. 2022) (selecting numbers from customer information database is not an ATDS)