District Court (Conn.) Says Text Message Software Passed Muster under Duguid; Rejects Argument that a Text Message is a “Pre-Recorded Voice”

In Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., No. 3:19-cv-592 (JAM), 2022 U.S. Dist. LEXIS 126468, at *6-8 (D. Conn. July 18, 2022), Judge Meyer disposed of the argument that Subway’s text message software was an ATDS.

And under Soliman’s reading, the Act would probably cover much more than mass dialing. As she admits, sequential number generation is “an incredibly common programming tool.”9 Under Soliman’s theory, then, the Act would likely cover every call placed by a computer or smartphone. But the Supreme Court has already held that it does not. See Duguid, 141 S. Ct. at 1171. In all, Soliman’s reading would “take a chainsaw to the[ ] nuanced problems [of robocalls] when Congress meant to use a scalpel.” Ibid.  In response, Soliman relies on a line from Duguid. There, the Supreme Court had to decide a different issue and did not expressly consider what the term “numbers” means. But in a footnote, the Court suggested that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Id. at 1172 n.7. Soliman reads this dictum to mean that the Act covers software like Subway’s. The footnote, however, is ambiguous: the Court left open whether the telephone numbers on the “preproduced list” were themselves generated randomly or sequentially. If they were, then this example would not help Soliman, because there is no allegation that Subway generated its list of stored numbers that way.  So Duguid does not support her argument. To the contrary, “[c]ourts interpreting the TCPA post-Duguid have rejected the argument that Plaintiff asserts here—that a device may be deemed an autodialer under the TCPA even if it uses a preprepared list of numbers, so long as the device randomly or sequentially chooses which numbers on that list to contact.” Mina v. Red Robin Int’l, Inc., 2022 WL 2105897, at *4 (D. Colo. 2022) (citing cases); see also In re Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 2021 WL 5203299, at *2-4 (S.D. Cal. 2021) (citing cases). Besides, the rest of Duguid sharply favors Subway. As I have noted, the Supreme Court found the Act to have a purpose that is incompatible with Soliman’s overbroad interpretation. And in one part of the opinion, the Court even defined automatic telephone dialing systems as devices that “allow[ ] companies to dial random or sequential blocks of telephone numbers.” 141 S. Ct. at 1167 (emphasis added). The TCPA is clear: a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list. The complaint does not allege facts to plausibly suggest that Subway used an “automatic telephone dialing system” within the meaning of the TCPA.

Judge Meyer also rejected the unsupported theory that a text message constitutes a “pre-recorded voice” under the TCPA so as to not have to prove that it was sent by means of an ATDS.

Soliman’s interpretation is even less plausible given that the Act bans “prerecorded voices.” To “record” is “[t]o convert (sound or visual scenes, esp. television pictures) into a permanent form.” Record (def. 9c), Oxford English Dictionary. This definition matches perfectly with the sound sense of “voice,” but not with the metaphorical one. The rest of § 227 confirms that Congress used “voice” the standard way. The Act defines “caller identification information” as “information regarding the origination of[ ] a call made using a voice service or a text message sent using a text messaging service.” § 227(e)(8)(A). If a text message were a type of voice call, this definition would be redundant.  Soliman replies that her reading finds support in the Act’s purpose and legislative history, and in the FCC regulations implementing the law. She adds that, as a remedial statute, the Act should be interpreted broadly. But arguments like these are on the menu only when a law is ambiguous; “[a]bsent ambiguity,” my analysis must “end[ ] with the statutory language.” Fed. Hous. Fin. Agency v. UBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013). Here, the Act has only one plausible meaning: text messages without an audio component are not prerecorded voices. Accordingly, Soliman’s second theory also fails.