On May 10, 2024, a divided Second Circuit panel held that a device that merely selects and dials numbers from a stored list does not constitute an “automatic telephone dialing systems” (ATDS) under the Telephone Consumer Protection Act (TCPA).  The panel observed in Soliman v. Subway Franchisee Advertising Fund Trust Ltd. that its holding aligns with that of three other U.S. Courts of Appeals that have considered this issue. 

By way of background, the plaintiff in Soliman sued Subway, alleging, among other things, that Subway sent an automated marketing SMS to her mobile phone in violation of the TCPA because she previously withdrew consent to receive such messages.  The plaintiff alleged that Subway used an automated text-messaging system that was able to “dial telephone numbers stored as a list or in a database without human intervention.”  She argued that the TCPA’s definition of an ATDS encompasses technology that generates any number used to store or produce telephone numbers, not just technology that generates the telephone numbers themselves.

A majority of the Second Circuit panel held that based on the Supreme Court’s decision in Facebook Inc v. Duguid and “principles of statutory interpretation,” the TCPA’s restrictions on the use of an ATDS did not apply to the device used by Subway.