By Brittany Andres
TCPA ATDS WIN
HUGE TCPA
ATDS WIN
Second Circuit Joins Ninth In Concluding Only Systems That Randomly
Generate Telephone Numbers Trigger TCPA Definition
By Brittany Andres
THERE was another big win for call centers hoping to leverage efficient modern technology to contact lists of phone numbers , even as those hoping to use the Telephone Consumer Protection Act ( TCPA ) to prevent high-volume calling practices just suffered a major setback .
At issue is the TCPA ’ s definition of “ automatic telephone dialing system ” ( ATDS ). An ATDS was defined in the statute as a system that has the ability to store or dial telephone numbers using a “ random or sequential number generator ” ( ROSNG .)
In April of 2021 , the U . S . Supreme Court confirmed that ROSNG usage was a critical part of what makes an ATDS an ATDS ; however , the ruling seemingly left open the use of an ROSNG to “ store ”— as opposed to “ produce ”— telephone numbers . That opening might convert standard autodialers — that commonly use number generators to determine dialing campaign sets or sequences — into an ATDS for TCPA purposes .
Whether a system is an ATDS is a big deal because the use of such systems is governed by federal law . Misuse of an ATDS can lead to private fines of up to $ 1,500 per call and even steeper penalties at the hands of federal regulators .
In Soliman v . Subway Franchisee Advertising Fund , 2024 WL 2097361 ( 2nd Cir . 2024 ), the Second Circuit Court of Appeals held the TCPA ’ s ATDS definition only applies to systems that randomly generate telephone numbers — effectively foreclosing the use of the TCPA as a weapon to battle large-scale telemarketing calls and texts that are made to purchased lists .
In Soliman , the Plaintiff complained Subway had sent text messages promoting its products without his consent . He sued seeking damages for the unwanted texts he received and those received by other individuals similarly situated to him .
The lower court had thrown the case out , reasoning the texts had been directed to Plaintiff ’ s phone number and had not been sent to random numbers .
On appeal , Plaintiff argued that although his telephone number was not randomly generated , the platform used to send the message — Mobivity — had the ability to use an ROSNG to store and sequence the text messages as they were being sent .
The Second Circuit Court of Appeals concluded that the use of an ROSNG for any purpose other than to create telephone numbers was irrelevant . Only systems that randomly or sequentially generate telephone numbers trigger the statute .
To reach this conclusion , the Second Circuit reasoned that the word “ number ” in the statutory definition of ATDS always means “ telephone number ,”
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