ANOTHER BIG ATDS WIN: Subway Walks Away from TCPA Fight Over Promotional Text Messages

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So we just spent two solid days presenting on ATDS issues at the big TCPA summit. Was a GREAT time. Pictures to follow (probably tonight.)

One of the big issues was the impact of Facebook on the ATDS landscape and, specifically, how one “stores” telephone numbers sing an ROSNG.

Recent case law has been surprisingly good for defendants on the issue. Surprising in the sense that courts seem to be willing to read Facebook to require an ROSNG to generate telephone numbers randomly–which is not actually what the case says.

Here’s another example.

In Soliman v. Subway  2022 WL 2802347 (D. Conn. July 18, 2022) the Court granted Subway’s motion to dismiss, finding that its automatic text system was not an ATDS. The critical component to the ruling? The system did not generate phone numbers using an ROSNG:

Assuming Soliman is right about how Subway’s system works, a system that works this way would not violate the Act. That is because when the Act refers to a “random or sequential number generator,” it means a generator of random or sequential telephone numbers—not a generator of random or sequential index numbers that are used in turn to select telephone numbers to dial.

This is consistent with two other recent cases–those against Las Vegas’ Treasure Island Hotel and one against Red Robin. In both of those cases the court found an ATDS was not used because the system did not randomly generate telephone numbers.

While I love to see this trend, it frankly concerns me that folks will begin to develop a false sense of security here. Again, Facebook does not actually hold that telephone numbers must be produced randomly. Indeed, these decisions seem to be missing about half the analysis. I suspect any or all of them may end up reversed on appeal.

We’ll keep an eye on it! And in the meantime check out the Facebook Ruling Resource Page for more coverage. And for a deep dive on ATDS issues be sure to check out Deserve to Win (Ep. 2) in which we break it down with Safe Select’s Dan Greenwell:

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. As more courts issue rulings, it will be interesting to see how courts in the 7th circuit handle this, since Gadelhak explicitly rejected the interpretation that ROSNG modifies “telephone numbers.”

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  2. Is this a trend or a trifle? Post-Facebook will either be a redefining or a rejection of the norm. We can only hope that sanity will prevail and the FCC comes out with a definition of ATDS and TCPA legislation that matches current technologies as well as provides a roadmap for future legislation.

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