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

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:




  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.”

  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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