22-1726
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MARINA SOLIMAN, on behalf of herself and all others similarly situated,
Plaintiff-Appellant,
v.
SUBWAY FRANCHISE ADVERTISING FUND TRUST, LTD.,
Defendant-Appellee,
Does, 1 through 20, inclusive, and each of them.
Defendant,
On Appeal from the United States District Court for the
District of Connecticut in Case No. 3:19-cv-00592-JAM
Judge Jeffrey A. Meyer
APPELLANT MARINA SOLIMAN’S OPENING BRIEF
LAW OFFICES OF TODD M.
FRIEDMAN, P.C.
Todd M. Friedman (SBN 216752)
Adrian R. Bacon (SBN 280332)
21031 Ventura Blvd, Suite 340
Woodland Hills, CA 91364
Phone: 323-306-4234
Fax: 866-633-0228
tfriedman@toddflaw.com
WOCL & LEYDON, L.L.C.
Brenden P. Leydon, Esq. (CT16026)
80 Fourth Street
Stamford, CT 06905
Telephone: (203) 324-6164
Facsimile: (203) 324-1407
BLeydon@tooherwocol.com
FEDERAL BAR NO.: CT16026
ATTORNEYS FOR APPELLANT
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................III
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................. 2
STATEMENT OF THE CASE ............................................................................... 3
STATEMENT OF FACTS ...................................................................................... 7
I. Soliman’s Allegations ...................................................................................... 7
II. The District Court’s Order Dismissing the Complaint Without Leave to
Amend ................................................................................................................ 15
SUMMARY OF THE ARGUMENT ......................................................................19
STANDARD OF REVIEW .....................................................................................21
ARGUMENT ...........................................................................................................23
I. Soliman Alleged a Plausible Claim that Subway Used an ATDS to Place
Calls to her Cellular Telephone. ...................................................................... 23
A. What Is A Random Or Sequential Number Generator? ..............................24
B. The District Court Misapplied Facebook’s ATDS Test ..............................27
C. The District Court’s Ruling Conflicts with the Plain Language of the
Statute and Ignores Half of the Supreme Court’s Test .....................................32
ii
D. Legislative History and FCC Rulings Support Predictive Dialers Being an
ATDS, and SMS Blasters are Programmed Using the Same Number Generator
Functions...........................................................................................................37
E. Courts After Facebook Have Agreed that Dialers do not Need to Self-
Generate Telephone Numbers to be an ATDS .................................................41
F. The District Court Erred Procedurally by Failing to Accept Plaintiff’s
Allegations as True ...........................................................................................46
II. Soliman’s Complaint Alleges Use of an Artificial Voice ............................. 49
A. Voice is an Ambiguous Term ......................................................................51
B. Voice Should Be Interpreted Broadly ..........................................................53
CONCLUSION .......................................................................................................56
CERTIFICATE OF COMPLIANCE FOR BRIEFS ...............................................58
CERTIFICATE OF SERVICE ................................................................................59
iii
TABLE OF AUTHORITIES
Cases
Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013) ........................32
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................. 21, 46
Ashland Hosp. Corp. v. Serv. Employees Int'l Union, Dist. 1199 WV/KY/OH, 708
F.3d 737 (6th Cir. 2013) .......................................................................................54
Atkinson v. Pro Custom Solar LCC, No. SA-21-CV-178-OLG, 2021 WL 2669558
(W.D. Tex. June 16, 2021) ............................................................................ 41, 47
Barnett v. Bank of America, 2021 WL 2187950 (W.D.N.C. May 28, 2021) ..........42
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................ 21, 22, 46
Bell v. Portfolio Recovery Assocs., LLC, No. 5:18-CV-00243-OLG, 2021 WL
1435264 (W.D. Tex. Apr. 13, 2021) ....................................................................47
Borden v. eFinancial, LLC, 53 F.4th 1230 (9
th
. Cir. 2022) .....................................43
Brickman v. United States, 2022 WL 17826875 (9
th
Cir. Dec. 21, 2022) .. 43, 44, 45
Callier v. GreenSky, Inc., 2021 WL 2688622 (W.D. TX May 20, 2021) ...............42
Caplan v. Budget Van Lines, Inc., No. 220CV130JCMVCF, 2020 WL 4430966 (D.
Nev. July 31, 2020) ..............................................................................................55
Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082 (9th Cir. 2014) . 22,
47
iv
Corley v. United States, 129 S.Ct. 1558 (2009) .......................................................32
Duguid v. Facebook, Inc., 926 F.3d 1146 (9
th
Cir. 2019) .......................................... 4
Duncan v. Walker, 533 U.S. 167 (2001) ..................................................................36
Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) .......................................... passim
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .......................32
Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) .................................54
Garner v. Allstate Insurance Company, 2021 WL 3857786 (N.D. IL Aug. 30,
2021) .............................................................................................................. 42, 47
Grome v. USAA Savings Bank, No. 4:19-CV-3080, 2021 WL 3883713 (D. Neb.
Aug. 31, 2021) ......................................................................................................29
Gross v. GG Homes, Inc., No. 3:21-CV-00271-DMS-BGS, 2021 WL 2863623
(S.D. Cal. July 8, 2021) ........................................................................................47
Hibbs v. Winn, 542 U.S. 88 (2004) ..........................................................................32
Jance v. Home Run Offer LLC, No. CV-20-00482-TUC-JGZ, 2021 WL 3270318
(D. Ariz. July 30, 2021) ........................................................................................47
Jance v. Homerun Offer LLC, 2021 WL 3270318 (D. AZ July 30, 2021) ..............42
Libby v. National Republican Senatorial Committee, 551 F.Supp.3d 724 (W.D.
TX July 27, 2021) .................................................................................................42
MacDonald v. Brian Gubernick PLLC, 2021 WL 5203107 (D. Az. Nov. 9, 2021)
..............................................................................................................................42
v
Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9
th
Cir. 2018) ............................ 4
Marriott v. National Mut. Cas. Co., 195 F.2d 462 (10th Cir. 1952) .......................55
McEwen v. National Rifle Association of America, 2021 WL 5999274 (D. ME Dec.
20, 2021) ...............................................................................................................42
Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct. 2238 (2011) .............................36
Miles v. Medicredit, Inc., No. 4:20-CV-01186 JAR, 2021 WL 2949565 (E.D. Mo.
July 14, 2021) .......................................................................................................47
Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) ........................................... 1
Montanez v. Future Vision Brain Bank, LLC, 536 F.Supp.3d 828 (D. Co. April 29,
2021) .....................................................................................................................41
Montanez v. Future Vision Brain Bank, LLC, No. 20-CV-02959-CMA-MEH, 2021
WL 1697928 (D. Colo. Apr. 29, 2021) ................................................................47
Myun-Uk Choi v. Tower Rsch. Cap. LLC, 890 F.3d 60 (2d Cir. 2018) ...................21
Nakano v. United States, 742 F.3d 1208 (9th Cir. 2014).........................................52
Panzarella v. Navient Solutions, Inc., 37 F.4th 867 (3
rd
Cir. 2022) ........................37
Poonja v. Kelly Services, Inc., 2021 WL 4459526 (E.D. IL, Sept. 29, 2021) .........42
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2
nd
Cir. 2017) .......55
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ................ 51, 55
Scheuer v. Rhodes, 416 U.S. 232 (1974) .......................................................... 22, 46
Timms v. USAA Federal Savings Bank, 543 F.Supp.3d 294 (D. SC June 9, 2021) 43
vi
Van Buren v. United States, 141 S.Ct. 1648 (2021) ..............................................16
Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017) ... 34, 54
Vance v. Bureau of Collection Recovery LLC, No. 10 C 6324, 2011 WL 881550
(N.D. Ill. Mar. 11, 2011) ......................................................................................48
Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d
Cir. 2008) ..............................................................................................................22
Statutes
28 U.S.C. §1331 ......................................................................................................... 1
Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ........................ passim
Other Authorities
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (3d ed.
2004) .....................................................................................................................22
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (1st ed. 2012) ..............................................................................................32
Hearing Before the Subcommittee on Communications of the Committee on
Commerce, Science and Transportation, United States Senate One Hundred
Second Congress First Session July 24, 1991, Testimony of Robert Bulmash ...40
Rules
Fed. R. App. P. 4 ........................................................................................................ 1
Fed. R. Civ. P. 12(b)(6) ............................................................................................21
vii
Regulations
47 C.F.R. §§ 64.1200 ...............................................................................................40
7 FCC Rcd. 8752 (F.C.C. September 17, 1992) ......................................... 39, 40, 54
In re Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order, 18 FCC Rcd. 14014 (2003) ............................... 13, 38
In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 23 F.C.C. Rcd. 559 (Jan. 4, 2008) ..............................................................34
In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of
1991, 30 F.C.C. Rcd. 7961 (2015) .......................................................................39
1
JURISDICTIONAL STATEMENT
The United States District Court for the Central District of California had
federal question jurisdiction under 28 U.S.C. §1331, Mims v. Arrow Fin. Servs.,
LLC, 132 S. Ct. 740, 753 (2012). In her First Amended Complaint, appellant Marina
Soliman (“Soliman”) alleged two causes of action under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). APX-123-140.
1
This appeal is from the January 28, 2022 order of the District Court granting
Defendant/Appellee’s SUBWAY FRANCHISE ADVERTISING FUND, LTD.’s
(“Subway” or “Appellee”) motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
2
Soliman’s complaint was
dismissed with prejudice. APX-16-22. The District Court entered Judgment on July
18, 2022. APX-15. Soliman filed a timely notice of appeal on August 8, 2022.
APX-3-14. See Fed. R. App. P. 4(a)(1)(A).
1
Citations to appellant Soliman’s Appendix are denoted “APX,” followed by the
page number.
2
All subsequent references to rules will be to the Federal Rules of Civil Procedure,
unless otherwise specified.
2
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Did the District Court err in granting Subway’s motion to under Rule 12(b)(6)
when it concluded that Soliman did not allege facts sufficient to state a
plausible claim?
2. Does the plain language of the TCPA’s definition of Automatic Telephone
Dialing System (“ATDS”), pursuant to 47 U.S.C. § 227(a)(1) and the Supreme
Court’s holding in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), require
a plaintiff to allege that the “equipment must use a number generator to
generate the phone numbers themselves” or can a plaintiff allege use of an
ATDS by alleging that the equipment uses number generators to either store
or produce telephone numbers to be called?
3. Whether the district court’s granting of Subway’s motion, pursuant to
F.R.C.P. 12(b)(6) violated the requirement that district courts must construe
the complaint in the light most favorable to the plaintiff when deciding
whether to deny a plaintiff the right to discovery?
4. Whether the district court’s holding that Subway’s automated SMS blasting
platform did not send messages to Soliman utilizing an artificial or voice,
contravenes the definition of artificial voice as prohibited by 47 U.S.C. §
227(b)(1)(A)?
3
STATEMENT OF THE CASE
On April 22, 2019, Marina Soliman filed a class action Complaint alleging
that Subway negligently and willfully violated the TCPA by sending to her cellular
telephone and those of others similarly situated telemarketing text messages using
an automatic telephone dialing system (“ATDS”). Soliman alleged that solicitation
text messages were blasted out en masse using an SMS blaster, which is a traditional
campaign-based dialing platform that automatically sends thousands of text
messages to thousands of people and was used in this fashion to automatically dial
Soliman. Soliman further alleged that the SMS blaster was programmed with source
code that relied upon number generators to both store and produce the telephone
numbers that the system called. Soliman’s complaint and accompanying briefing
contained a specific example of such number generators used by an SMS blaster
alleged to function similarly to the one used by Subway. These telemarketing text
messages were sent to consumers without prior express consent, as Soliman (and
putative class members) had revoked consent to be contacted by Subway, which
Subway ignored. Thus, Subway was mass-dialing thousands of consumers without
consent, just as Congress intended to prohibit when enacting the TCPA.
The District Court erred by dismissing Soliman’s ATDS allegations.
According to the District Court, Soliman’s claims failed “because when the Act
refers to a ‘random or sequential number generator,’ it means a generator of random
4
or sequential telephone numbers.” This is inconsistent with the Supreme Court’s
test, set forth in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (“Facebook”). In
Facebook, the Supreme Court was asked to clarify a syntax dispute regarding
whether the qualifying phrase “using a random or sequential number generator”
applied to both the “store” and “produce” components of the TCPA’s disjunctive
ATDS elements. Under this Court’s prior holdings,
3
the qualifying language was
held to only modify the latter. The result was that any system which automatically
dialed telephone numbers from stored lists was previously considered an ATDS,
even if no number generators were coded into the dialer.
Facebook does not exclude the dialing software used to dial Soliman, which
does utilize number generators in the code to both store and produce the telephone
numbers to be called. Thus, the District Court’s ruling contravenes the instructions
of the Supreme Court, which observed that number generators could be used to
either store or produce. According to the District Court, it must do something
completely different – generate the telephone numbers themselves, even though the
statute does not reference telephone number generation, and the Supreme Court did
not include those words in its ruling.
3
Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9
th
Cir. 2018); and Duguid v.
Facebook, Inc., 926 F.3d 1146 (9
th
Cir. 2019).
5
Soliman alleged with detailed specificity exactly what the Supreme Court
instructed a Soliman must allege for a dialing system to be an ATDS. These
allegations were convincingly presented. The system used to call Soliman operates
and is programmed considerably differently than the system used by Facebook to
dial Duguid. Facebook did not use an SMS blasting platform. Its system sent fraud
alerts based on a one-to-one triggering event to a specific telephone number, when
certain criteria instructed the dialing software to call that specific consumer.
Soliman received a mass-blasted marketing text message from an unknown
company.
The District Court’s ATDS ruling was flawed procedurally and legally. First,
the District Court misapplied the Supreme Court’s instructions in Facebook.
Second, the District Court ignored Soliman’s allegations and incorrectly looked
beyond the pleadings to determine the system was not an ATDS.
4
Soliman plausibly
alleged the dialing software used random or sequential number generators to both
store and produce telephone numbers to be called. These allegations should have
been viewed in their light most favorable to allow for the right to discovery and a
determination of the issue on the merits.
4
How a District Court could do this without reviewing source code or hearing from
experts about how the dialer relied upon number generators is unclear.
6
Soliman alternatively alleged that the system used to automatically send her
pre-drafted messages at a pre-scheduled time via SMS utilized an artificial voice.
Soliman requested judicial notice of the TCPA’s legislative history which shows
Congress prohibited artificial and prerecorded voice calls after expressing concerns
with agentless communication devices, which it found particularly obnoxious and
intrusive. There is no doubt the messages were artificial. The only question is
whether the word “voice” is ambiguous and may encompass text-based forms of
telephone communications.
The District Court found that voice must mean “[s]ound formed in or emitted
from the human larynx in speaking” and ignored Soliman’s alternative dictionary
definitions of voice: “an instrument or medium of expression” and “to express in
words.” Voice can mean many things. Text messages have been interpreted by both
courts and the FCC to be calls under the TCPA, which is a remedial statute and must
be broadly construed. The written language of an SMS communication is simply
the communicative counterpart to an oral communication through a phone call. If a
text is a call, then a text utilizes a voice. The District Court disagreed, finding that
Congress intended to use voice in “the standard way.” However, the District Court’s
narrow interpretation of voice suffers from many textual problems, including that
artificial voices are, by definition, inorganic and are not a “[s]ound formed in or
emitted from the human larynx in speaking.” Artificial voices are sounds created by
7
computer programs where text is converted into noise through software. Under the
District Court’s definition of “voice” there is no such thing as an “artificial voice”
resulting in the term being mere surplusage. Moreover, because text messages are
calls, under the District Court’s reading, the TCPA would become inharmonious
unless rewritten to carry different standards for texts and calls. The statute treats
“any” telephone call as prohibiting artificial voices, presupposing such existence in
all contexts. 47 U.C.S. § 47(b)(1)(A). Alternative definitions suffer from textualist
problems. Soliman’s allegations of artificial agentless text messages satisfies both
the letter and spirit of the law.
STATEMENT OF FACTS
I. Soliman’s Allegations
Soliman’s First Amended Complaint alleged individually and on behalf of
those similarly situated that Subway negligently and willfully contacted Soliman on
her cellular telephone in violation of section 47 U.S.C. § 227(b)(1) of the TCPA.
APX-123-140.
5
Soliman alleged that Subway contacted her using an SMS blaster,
which is an autodialer program that sends out text message blasts to large lists of
5
The District Court incorporated by reference additional factual allegations raised
by Soliman in briefing, in denying leave to amend. Therefore, this additional
argument and briefing is appropriate for this Court to review as part of Soliman’s
allegations, as it should be presumed that Soliman could further such facts if given
the opportunity.
8
telephone numbers without any manual dialing component. Soliman alleged that
Subway contacted her and other consumers using this device after having opted out
of receiving such communications from Subway, i.e. without consumers’ prior
express consent.
Soliman alleged that the SMS blaster used by Subway was an ATDS under
Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (“To qualify as an ‘automatic
telephone dialing system,’ a device must have the capacity either to store a telephone
number using a random or sequential generator or to produce a telephone number
using a random or sequential number generator.”) (emphasis added). As the
Supreme Court indicated, “an autodialer might use a random number generator to
determine the order in which to pick phone numbers from a preproduced list. It
would then store those numbers to be dialed at a later time.” Id. at 1171-72 fn. 7.
On or about December 1, 2016, Soliman received advertising/promotional
text messages from Subway on her cellular telephone number ending in -3553 from
short code 782-929. The text messages sought to solicit Subway’s services:
FREE CHIPS RULE! Right now @SUBWAY, get
ANY bag of chips FREE with a sub purchase. Exp
12/6: http://mfon.us/rk6srrfdjue HELP/STOP call
8447887525
APZ-127. Annoyed by the unwanted advertising material, Soliman responded
“STOP” to this text message. Id. Subway sent an immediate computer-generated
9
responsive text message to Soliman that read:
Subway: You have been unsubscribed from all
programs on 782929 and will no longer receive
any text alerts. Q’s? Reply HELP. Msg & data
rates may apply.
Id. Despite acknowledgment of receipt of this request for further text messages to
cease, on or about December 5, 2016 at approximately 2:28 PM, subway again sent
an automated text message to Soliman, which read:
Your weekly SUBWAY offer is waiting, Don’t
miss out! Expires 12/6: http://mfon.us/rk6srrfdjue
HELP/STOP call 8447887525
Id. Soliman alleges that similar telemarketing messages were sent “en masse to
millions of customers’ cellular telephones nationwide.” Id. Such messages were
drafted in advance by Subway, which dictated the prerecorded content and timing of
the messages to consumers’ telephones. APX-128. The system used to send the
messages was an SMS blasting platform operated by Mobivity, which utilized short
code messaging to send generic impersonal template messages to millions of
consumers in automated dialing campaigns. APX-128-131.
Soliman alleges that the SMS blasting platform utilized random or sequential
number generators to store and produce telephone numbers. Id. Soliman provided
the District Court with known programming code in other SMS blasting platforms
used by competitors of Mobivity. Specifically, Soliman gave a known example of
10
a Sequential Number Generator, which Soliman’s counsel are aware is programmed
into the software code of a well-known SMS blasting platform:
730 if (!this.recordList.isEmpty()) {
731 this.recordNumber++;
732 final String comment = sb == null ? null : sb.toString();
733 result = new CSVRecord(this,
this.recordList.toArray(Constants.EMPTY_STRING_ARRAY),
comment,
734 this.recordNumber, startCharPosition);
735 }
736 return result;
737 }
6
APX-27.
These lines of code, and specifically the “++” in line 731, generate
sequential numbers as part of a loop, used to store and produce
telephone numbers, which are thereafter mass-blasted text messages to
thousands of consumers in mere seconds, without any human
intervention whatsoever. This is publicly available open-source code
integrated into the proprietary programming interface of a well-known
SMS blasting platform competitor to Mobivity, which operates
identically to the one used by Subway to robodial Soliman.
7
The
sequential number generator in the code above is executed in the
process of mass blasting text messages. The program cannot function
without executing the sequential number generator above. In fact, this
6
Available here: https://commons.apache.org/proper/commons-csv/apidocs/src-
html/org/apache/commons/csv/CSVParser.html
7
The dialer code showing this Parser is one example of number generators that are
known to exist in dialer code and are used in both the storage and production of
telephone numbers to be called by dialing systems. Soliman does not have access
to the source code for Subway’s dialing system, but alleges number generators were
used in its system and gave one known concrete example of number generators used
in SMS blaster dialer code. Her complaint should not be read to be limited to this
particular example of code, but should be broadly construed, given that this code is
illustrative.
11
is how all SMS blasters, and indeed any campaign-based autodialers
(including predictive dialers), have always been designed and
programmed to operate upon actual inspection of the programming
code. This is what Plaintiff alleges Subway used to robodial her.
Id.
8
Subway’s SMS blaster used a random or sequential number generator to store
and produce telephone numbers and then dialed those stored lists in an automated
fashion without human intervention.
9
APX-128-131. These campaigns were
agentless, and did not involve a live agent, but rather a text blast sent by a computer.
They also involve messages drafted in advance and sent automatically based on pre-
programmed parameters. Soliman offers information from the Mobivity website
which further supports the position that the Mobivity system works as a standard
SMS blasting platform. Id. Soliman further alleges that such systems utilize
algorithmic dialing, which is how predictive dialers and other campaign-based
autodialers that use sequential number generators operate. Soliman alleged with
8
This descriptive language and dialer code was proffered in Soliman’s Motion to
Dismiss briefing, and the Court took note of it in denying Soliman leave to amend.
For the purposes of this Appeal, it should be treated as part of Soliman’s allegations.
9
Plaintiff is aware that human intervention is not the legal standard for whether a
system is or is not an ATDS. However, a lack of human intervention, alleged at the
pleading stage, strongly suggests a random or sequential number generator was used
to store, or produce (or both) telephone numbers to be called by the dialer. Where
human intervention is lacking, this leads to a strong inference that the system relies
on number generation, from a pure software engineering perspective. Plaintiff made
this allegation to ensure the District Court had more than bare bones allegations of
the Supreme Court test.
12
emphasis that any traditional text blasting platform, “will have some variation on the
coding that is described herein, which will undoubtedly include either random or
sequential number generators that are being executed in conjunction with storing and
dialing the telephone numbers, including the dialing of Plaintiff’s phone number.”
APX-34. Soliman alleges that such a system is capable of sending out thousands of
messages in the blink of an eye with no manual human involvement beyond pre-
programming the campaign parameters. APX-31.
Soliman went on to describe how the SMS blaster used number generators in
its code to dial her telephone number, and the telephone numbers of other consumers.
A dialer operator accesses a database of consumer contact information,
which is typically contained in a text delimited file, either in a CSV file,
text file, Microsoft Excel, or Microsoft Access file. In essence, this is
a spreadsheet, containing rows and columns of data, which includes
telephone numbers. The operator will load this data set into the dialing
platform, usually through an online web portal. The dialing system will
cut the data set into individual lines, unique to each telephone number
with an assigned row using a parser. A random or sequential number
generator (typically sequential) will generate numbers, and assign those
numbers to the data, during a process called indexing. The program
will then “store” the data in a temporary cache or RAM memory
location accessible to the dialer. A random or sequential number
generator is simultaneously used to select and produce the indexed
telephone numbers to the dialer. Once the number generator
corresponds to a matching number in the stored list, that telephone
number will be “produced” from storage to the dialer, which then
automatically dials that telephone number. Thus, the system is literally
both storing and producing telephone numbers to be called by the
campaign autodialing systems. Storage and production occur
automatically, without any organic triggering event by a human. The
aforementioned process determines which order and sequence the list
13
of telephone numbers are to be stored, produced and automatically
dialed, as well as the rate at which this process occurs.
APX-30-31.
These campaigns were preprogrammed by Subway, and the Mobivity
platform was used to mass dial lists of consumers using number generators that
indexed those lists, stored them using either random or sequential number generators
(most likely sequential like the Apache code above), and then relied on similar
number generators to produce the stored numbers from temporary memory to the
dialer to be called.
10
Based on the content and format of the text messages, Soliman
alleges they were sent via Subway’s SMS Blasting Platform, which is an ATDS, as
defined by 47 U.S.C. § 227 (a)(1) as prohibited by 47 U.S.C. § 227 (b)(1)(A).
Soliman alternatively alleges Subway’s dialing platform utilized an “artificial
voice” as prohibited by 47 U.S.C. § 227(b)(1)(A). Merriam Webster’s Dictionary
defines “voice” as “an instrument or medium of expression.” It defines “artificial”
10
Campaign-based SMS blasters operate virtually identically to traditional
predictive dialers, in that they rely on number generators to both store and produce
telephone numbers to be called by the platform. Predictive dialer functionality is
described by the FCC. In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 ¶¶
8 fn 31, 131, and 146 (2003) (“2003 FCC Order”). If a predictive dialer being used
in predictive dialing mode is treated legally as an ATDS, so too must an SMS blaster
because they rely on similar number generation.
14
as “humanly contrived…often on a natural model: MAN-MADE” and “lacking in
natural or spontaneous quality.”
The messages sent to Soliman employed a text message as an instrument or
medium of expression to deliver an automatic message drafted in advance of being
sent, to convey a telemarketing communication. SMS blasting platforms are man-
made humanly contrived programs which allow companies to blast out automated
messages via non-spontaneous methods, similar to an assembly line in a factory.
Such SMS blasting devices are incapable of spontaneity, as they must be
programmed by the operator to automatically send messages out, en masse, pursuant
to preprogrammed parameters.
The text message sent to Soliman was set down in writing in advance by
Subway, whose employees wrotestandard automated messages to be sent to Soliman
and other class members, and by way of preprogrammed SMS blasting, entered the
artificial message into the SMS Blasting platform, and thereafter sent these messages
pursuant to scheduled blasts that were programmed by Subway. Thus, Subway
employed a text message as an instrument or medium of expression to deliver an
artificial message.
11
APX-131-132.
11
Soliman waives the argument that automated text messages are prerecorded voices
for purposes of this appeal.
15
Soliman’s core allegation is that agentless text messages are, from the
perspective of legislative history, plain meaning, public policy, and regulatory
developments in SMS treatment since the enactment of the TCPA, the same thing as
a call utilizing an artificial noise.
II. The District Court’s Order Dismissing the Complaint Without Leave
to Amend
The District Court dismissed Soliman’s complaint without leave to amend,
finding the claims failed as a matter of law. APX-16-22. The District Court
observed the standard for determination of whether dialing software constitutes an
ATDS is whether it has the capacity to store or produce telephone numbers to be
called, using a random or sequential number generator, and to dial such numbers.”
47 U.S.C. § 227(a)(1). It went on to review Facebook, incorrectly summarizing its
limited holding and Soliman’s allegations as follows:
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.” Under Soliman’s theory,
then, the Act would likely cover every call placed by a computer or
smartphone.
12
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.”
12
This concern proffered by the District Court was misplaced, as it is factually
incorrect, as well as being uninformed by any expert opinion or evidence.
16
APX-11. Rather than applying the Facebook test, which analyzes whether a dialing
platform relies upon random or sequential number generators to either store or
produce telephone numbers to be called, the District Court misinterpreted the word
“produce”
13
and excised the words “store or” from the statute entirely creating a new
test that is nowhere in the statute.
The District Court found that an ATDS must “generate random or sequential
telephone numbers to call.” APX-18. (emphasis added). Stated otherwise, if an
autodialing platform was programmed to use a random or sequential number
generator to either store or produce telephone numbers to be called, but did not self-
generate its own list of telephone numbers, then according to the District Court, even
though the Supreme Court and the Congress both said otherwise, that system is not
an ATDS. The TCPA defines an ATDS as “equipment that has the capacity—(A)
to store or produce telephone numbers to be called, using a random or sequential
number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). For the
District Court’s Order to be consistent with the statute, an ATDS would need instead
13
Miriam Webster’s Dictionary’s first definition of “Produce” is “to offer to view
or notice.” Webster’s Ninth New Collegiate Dictionary, 938 (1991). Produce does
not mean the same thing as “create” or “generate.” Moreover “produce” is a
technical computer science term, and the interpretation of its meaning should be
viewed under the lexicon of computer science texts. See Van Buren v. United
States, 141 S.Ct. 1648, 1657 (2021) (technical terms should be interpreted under
their technical meaning).
17
to be defined as “equipment that has the capacity—(A) to create telephone numbers
to be called, using a random or sequential telephone number generator; and (B) to
dial such numbers.” This is not what the statute or the Supreme Court’s
interpretation of it say.
The District Court’s erroneous ruling that dialing software must self-generate
the telephone numbers it thereafter dials effectively results in nothing being an
ATDS. There do not exist modern dialing platforms that operate in this manner, and
such systems have not been used since the 1960s and were well out of fashion when
the statute was passed in 1992.
14
Moreover, the self-generation requirement ignores
the storage aspect of Facebook, as well as systems expressly described in its ruling
which rely on number generators to index and automatically dial stored lists of phone
numbers produced from storage to the dialer (like the system Soliman alleged).
Additionally, cannons of construction would reject a definition of ATDS that
categorically excludes systems that dial stored lists of numbers, because such a
holding would excise the statutory text regarding prior express consent from the
statute. A consent requirement presupposes that an ATDS could dial stored lists of
consenting consumers’ telephone numbers, as dialing telephone numbers that were
14
The Supreme Court was aware of this when it issued its ruling, as the history of
autodialers technology was presented before the Court in Amicus briefing in
Facebook. APX-56-85.
18
self-generated and did not come from a list of consenting consumers would
necessarily be unlawful under the District Court’s finding, axiomatically rendering
the consent requirement mere surplusage.
The District Court also rejected Soliman’s alternative argument that the SMS
blaster’s text to Soliman used an artificial voice. The Court found Soliman’s
argument was not “standard” but observed that the primary definition of voice in the
dictionary was “[s]ound formed in or emitted from the human larynx in speaking.”
To the District Court, Soliman’s reliance on a tertiary definition conflicted with the
Court’s belief of a “normal” understanding of the term. The District Court refused
to consider Legislative History and regulations that supported Soliman’s reading of
the statute as supporting a finding that agentless communications constituted an
artificial voice, despite acknowledging that this Court and the FCC held that a text
is a call.
15
Moreover, the District Court utilized canons of construction, specifically
the canon of in pari materia, which analyzes whether a particular reading is in
harmony with other sections of a statute, but failed to analyze Soliman’s plain
meaning alternative method, or apply the doctrine of remedial statutes, or Soliman’s
own in pari materia arguments that went against Subway’s interpretation. For the
District Court to have applies statutory construction beyond plain meaning implies
15
This implies that the words, whether spoken or written, in each communication
should be treated similarly (as a voice).
19
that it acknowledged the statute was ambiguous and searched for aid elsewhere, but
it selectively chose to do so, a strawman position contravened by this Court’s
guidance on interpretation of remedial statutes.
SUMMARY OF THE ARGUMENT
First, the District Court erred in granting Subway’s motion to dismiss under
Rule 12(b)(6). Soliman pled facts sufficient to support a reasonable inference that
Subway sent text messages to her cellular phone without express permission
utilizing an ATDS. Soliman alleged the text messages were sent by a dialing system
that “has the capacity to store or produce telephone numbers to be called, using a
random or sequential number generator.” These allegations were plausible and well-
supported with detailed facts that sharply differentiated Subway’s dialing software
from that in Facebook. Such allegations included that an SMS blaster was used, that
there was no human intervention in the transmission of the mass text blasts, and that
mass text blasts were sent indiscriminately to consumers without prior express
consent using spoofed numbers. Soliman included actual dialer software Java code
from similar systems that relied upon sequential number generators to both store and
produce telephone numbers to be called by such dialers, as well as a detailed
description of how the software was programmed to do so by using number
generators to both store and produce telephone numbers to be called. These facts
were sufficient to give rise to a reasonable inference that Subway used an ATDS as
20
defined by the TCPA. The District Court rewrote Soliman’s allegations and
narrowly interpreted them to say something less favorable, precluding Soliman from
obtaining proving her allegations.
Second, after narrowly and unfavorably interpreting Soliman’s well-pled
allegations, the District Court ignored the Supreme Court’s stated test for
determining whether a dialing system is an ATDS. “To qualify as an ‘automatic
telephone dialing system,’ a device must have the capacity either to store a telephone
number using a random or sequential generator or to produce a telephone number
using a random or sequential number generator.” Facebook, Inc. v. Duguid, 141
S.Ct. 1163 (2021). Instead of applying this test, which is satisfied by Soliman’s
well-pled allegations, the District Court applied a new test found nowhere in the
Supreme Court’s order: an ATDS must “generate random or sequential telephone
numbers to call.” APX-18. (emphasis added). This ruling conflicts with Facebook,
excising half of the disjunctive test (“store or produce”) from the plain language of
the statute. It is also impossible for a plaintiff to allege in good faith that an
autodialer operates in such fashion, creating an impossible test that consumers could
never satisfy.
Third, the District Court committed legal error by holding that an SMS
message, which is a “call” under the TCPA, can never be placed using an “artificial
voice.” The District Court’s Order that the term “voice” is unambiguous ignores the
21
presence of dueling dictionary definitions of the term “voice” and gives preference
to a definition that results in the word “artificial” being excised from the statute. If
“voice” is ambiguous, then the District Court should have looked to the legislative
history and other canons of construction
16
(including the remedial statute doctrine)
as cited by Soliman, which strongly support a reading where non-oral written
telephonic communications made by a computer qualify for the same privacy
protections as non-oral auditory noises made by a computer and communicating the
same message.
STANDARD OF REVIEW
A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is reviewed
de novo. Myun-Uk Choi v. Tower Rsch. Cap. LLC, 890 F.3d 60, 65 (2d Cir. 2018).
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the
claims stated in the complaint. See Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, the plaintiff’s complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the plaintiff pleads factual content that
16
The Court sought guidance from canons of construction due to a tacit
acknowledgement that the statute was ambiguous, but elected only to look to those
canons which supported Subway’s reading, while ignoring those supporting
Soliman. The Court then went on to erroneously hold the statute was unambiguous.
22
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. The Court must accept all factual
allegations as true and “draw all reasonable inferences in favor of the nonmoving
party.” Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104,
115 (2d Cir. 2008).
“The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). “[A] well-pleaded complaint may proceed even if it appears
‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at p. 556, quoting
Scheuer, 416 U.S. at p. 236. Moreover, where the facts supporting the plaintiff’s
allegations are peculiarly within the possession and control of the defendant—not
reasonably ascertainable by the plaintiff—the plaintiff is permitted to plead such
facts on information and belief. See Carolina Cas. Ins. Co. v. Team Equipment, Inc.,
741 F.3d 1082, 1087 (9th Cir. 2014); 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1224 (3d ed. 2004) (“Pleading on information and
belief is a desirable and essential expedient when matters that are necessary to
complete the statement of a claim are not within the knowledge of the plaintiff ....”).
23
ARGUMENT
I. Soliman Alleged a Plausible Claim that Subway Used an
ATDS to Place Calls to her Cellular Telephone.
Soliman’s position is straightforward. A number generator is a specific piece
of software coding that objectively can be reviewed and determined to either be or
not be used in a dialing system. One need only review the programming code to
ascertain whether such coding is present and being used. The Supreme Court stated
that random or sequential number generators must be used in the dialer software,
either to “store or produce telephone numbers to be called.” Soliman alleged that
Subway’s system used number generators to both store and produce telephone
numbers to be called. Soliman provided detailed allegations about how an SMS
blaster is typically programmed to do so, including illustrations of source code where
such number generators are present in systems that function similarly to how
Subway’s system functions. Soliman provided additional allegations giving rise to
a strong inference that number generators must have been used to send marketing
text messages to her telephone. Yet, the District Court dismissed her claims and
denied her the opportunity to discovery.
17
17
Such discovery would primarily consist of reviewing source code for the dialing
platform, and having experts explain whether and how it implements a random or
sequential number generator to store or produce telephone numbers to be called.
24
Soliman stated plausible allegations that should have been treated as true for
purposes of Subway’s motion. Soliman’s description of the dialing system fell
squarely within the Supreme Court’s definition of ATDS, yet the District Court
made up its own new test that is substantially different in numerous ways from the
Supreme Court’s instructions. Soliman only asks that the Second Circuit follow the
Supreme Court’s ruling in Facebook, as well as guidance from both this Court and
the Supreme Court which instructs courts to view complaints in the light most
favorable to a non-moving party, where there is even a slim chance of success on the
merits.
A. What Is A Random Or Sequential Number Generator?
Random or sequential number generators are common programming tools
used by software engineers when designing software, to automate certain functions
in ways that would otherwise be performed by human hand. This term was not
invented by Congress. It does not mean the same thing as “telephone number
generation.”
18
Any software engineer will agree. Number generators are a widely
18
The statutory text of 47 § 227(a)(1) states “The term “automatic telephone dialing
system” means equipment which has the capacity— (A)to store or produce
telephone numbers to be called, using a random or sequential number generator...”
The use of the phrase “telephone numbers to be called” in the same code section as
“number generator” and the key distinction between the term “telephone number”
and “number” thereafter indicate that a number generator is not referring to a
telephone number generator. Otherwise, the statute would have said “to store or
25
understood tool of software engineers.
19
Imagine playing a game of video blackjack. Such programs rely upon number
generators to randomize the cards received by the player and the dealer. A number
generator does not generate the cards. Those are predetermined by the 52 cards in a
standard deck. However, it might generate a number between 1-52 which
determines which card the player receives out of the deck. Parsers (number
generation code) might be used to index and store the cards of the deck in RAM and
assign numbers to each card. A random number generator might then be used to
generate a number between 1-52 which matches with the card that was assigned that
corresponding number by the parser. The card will then be produced from storage
and shown on the screen to the player. This allows the program to operate without
a dealer shuffling the deck or dealing the cards through a program that automates
this process without the labor cost associated therewith. It cannot be done without
random or sequential number generators. An ATDS is basically a video blackjack
machine on steroids, which instead of dealing cards, dials telephone numbers, and
instead of doing it one hand/call at a time, deals a thousand hands or dials a thousand
produce telephone numbers to be called, using a random or sequential [telephone]
number generator.”
19
See https://en.wikipedia.org/wiki/Random_number_generation;
https://en.wikipedia.org/wiki/Pseudorandom_number_generator;
https://www.reformattext.com/sequential-number-generator.htm
26
calls per second.
Undersigned counsel studied the code used to program SMS blasters with the
assistance of software engineers fluent in Java and found they execute number
generation code to store and produce numbers to be called by the dialer. Soliman
alleged such number generators were used by Subway’s dialing software, and
provided actual dialer code, and illustrations for how this might be done, like a video
blackjack machine. Using parsers, Soliman’s number (and other consumers’
numbers) might have been indexed and stored using a sequential number generator,
just like the assignment of cards in a deck by the blackjack machine. Using other
number generators, Soliman’s number would be produced from storage and called
forth to the dialer program, which would then know that her number was the one to
be called, much like the card being shown to the player on a blackjack machine’s
screen.
Such programs can dial thousands of consumers in mere seconds, without
human intervention, based on whatever parameters are targeted by the operator of
the dialing platform (campaigns).
20
Number generators (such as the Apache code in
20
Blackjack machines are not typically programmed to operate with this level of
speed, because it destroys the purpose of the enjoyment of the game for the player if
the machine processed thousands of hands per second. But an SMS blaster’s goal is
speed, not enjoyment, and it is usually programmed to send messages to every
telephone number in storage in rapid succession en masse.
27
Soliman’s Complaint) are executed in the process of mass SMS blasting. The
program cannot function, and therefore cannot dial phone numbers at all, without
executing number generators. SMS blasters rely on random or sequential number
generators to instruct databases to store and produce telephone numbers to be called.
Without this key component, a dialing campaign would require an agent to manually
place calls, via organic decision making, or as in Facebook,
21
through some other
organic one-to-one triggering event.
B. The District Court Misapplied Facebook’s ATDS Test
Facebook does not hold that every TCPA alleging use of an ATDS should be
21
In Facebook, that organic event was somebody trying to gain access to a Facebook
account without authorization, and Facebook’s system being programmed to notify
the account holder. The system did not use random or sequential number generation,
but rather simply dialed numbers automatically from a stored list. This is different
from the example of the blackjack machine in that a specific card would expressly
be requested by the system, bypassing the need for number generators in storage or
production. Consistent with the Supreme Court’s ruling, just because a computer
sent the message does not mean random or sequential number generation is involved.
Computers can be programmed to complete isolated tasks upon the occurrence of an
isolated organic triggering event. If there are a lot of triggering events, this could
optically appear to the untrained eye to be mass dialing, but it is not. The key
distinction is that the code in SMS blasters use number generation and dialing
campaigns to decide which telephone numbers to dial, while the code in the
Facebook platform apparently did not, and so it did not fit within the plain language
definition of an ATDS. The platform used here sent out impersonal advertisements
to thousands of consumers soliciting Subway’s services. Systems which “blasts”
messages to many people necessarily use a random or sequential number generator.
28
dismissed on the pleadings.
22
Nor does Facebook hold that an autodialer must self-
generate telephone numbers. The sole question in Facebook concerned a syntax
dispute over whether the phrase “using a random or sequential number generator”
modified both “store” and “produce.” The Supreme Court held that it did, and that
therefore, to be an ATDS, a dialing system must use some form of number
generation in its programming code to either store or produce the telephone numbers
to be called. The Supreme Court did not hold that a dialer must generate random or
sequential telephone numbers to meet the autodialer definition. Such a holding
would have required the Supreme Court to decide the meaning of the phrase “random
or sequential number generator”—a question that was not at issue and was not
briefed. It also would have required the Supreme Court to significantly alter the
plain language of the statute, including by excising words from the statute, and
adding words beyond the definition.
In Facebook, the Supreme Court held “[t]o qualify as an ‘automatic telephone
dialing system,’ a device must have the capacity either to store a telephone number
using a random or sequential generator or to produce a telephone number using a
random or sequential number generator.” 141 S.Ct. at 1163 (emphasis added). The
22
This would be the practical result of upholding the District Court’s Order because
autodialers do not self-generate the telephone numbers they then dial. Such systems
have not been used since the 1960s.
29
Court further observed that “advances in automated technology made it feasible for
companies to execute large-scale telemarketing campaigns at a fraction of the prior
cost, dramatically increasing customer contacts. Infamously, the development of
“robocall” technology allowed companies to make calls using artificial voices,
obviating the need for live human callers altogether.” Id. at 1167.
The Court determined that the texting platform used by Facebook, which sent
one-to-one text messages to individuals upon a triggering event and was not alleged
to rely on random or sequential number generator coding for either storing or
producing telephone numbers to be called, was not the type of technology targeted
by Congress. It went on to observe that inclusion of technology that could merely
store and then automatically dial, without employing number generation, presented
real world problems of overbreadth because such systems “could affect ordinary cell
phone owners in the course of commonplace usage, such as speed dialing or sending
automated text message responses.” Id. at 1171.
23
The Court correctly referenced
the possibility that “an autodialer might use a random number generator to determine
the order in which to pick phone numbers from a pre-produced list. It would then
23
A smartphone is not an ATDS under Appellant’s reading of Facebook.
30
store those numbers to be dialed at a later time.”
24
Id. at 1172 n.7.
25
Such a random
number generator would not generate telephone numbers; instead, it would generate
what are called index numbers, which correspond to the positions of telephone
numbers in an ordered list.
26
This footnote shows, at the very least, that the Supreme
Court did not commit to any specific definition of “random or sequential number
generator.” In fact, it alludes to some aspects of the very technology Soliman alleges
was used to dial her.
Two interpretations of the autodialer definition were at issue in Facebook.
First was the interpretation favored by Facebook and adopted by the Third, Seventh,
and Eleventh Circuits that required an autodialer to have the “capacity” to “us[e] a
random or sequential number generator” to either produce or store telephone
24
This part of the Court’s reasoning in is inconsistent with any assumption that the
“random or sequential number generator” must generate telephone numbers. It is
also worth noting that predictive dialers and SMS blasters operate in the exact
manner described by the Supreme Court in footnote 7, and have for decades. It is
not only possible to store telephone numbers using a random number generator, but
this is in fact something which many if not most autodialers are programmed to do.
An example of such number generation from an actual SMS blaster was pled in
Soliman’s Complaint.
25
Some courts have held that a system which automatically re-sequenced numbers
on a campaign list would have qualified as an autodialer, if not for the fact that there
was no evidentiary showing in the record by plaintiff that it did so by using a random
or sequential number generator. See Grome v. USAA Savings Bank, No. 4:19-CV-
3080, 2021 WL 3883713, at *5 (D. Neb. Aug. 31, 2021).
26
This excludes cellular telephones, as one’s contact lists are stored, produced, and
dialed without use of number generators.
31
numbers to be called. Facebook, 141 S. Ct. at 1169. Second was the interpretation
favored by Duguid and adopted by the Second, Sixth, and Ninth Circuits, which
found that it was sufficient that a dialer “store . . . telephone numbers to be called”
and “dial such numbers.” Id.. The key difference in the two interpretations was a
question purely of syntax: whether “using a random or sequential number generator”
modified both “store” and “produce” or just “produce.” Id.
The meaning of “random or sequential number generator” was not at issue.
Duguid and the plaintiffs in the other circuit court cases argued that an autodialer
need not use a number generator at all. The Supreme Court found that “the most
natural construction” of the autodialer definition required that the phrase “using a
random or sequential number generator” modify both “store” and “produce.”
Facebook, 141 S. Ct. at 1169. As a result, the Court declared that “whether storing
or producing numbers to be called, the equipment in question must use a random or
sequential number generator.” Id. at 1170. Indeed, the Court repeatedly framed the
question presented and its holding without reference to telephone number
generation.
27
The Court’s holding and primary analysis were based on the syntax of
27
The Court framed the question presented as having to do with telephone number
generation only once. Duguid, 141 S. Ct. at 1168. In every other place where the
Court stated the question presented or its holding, the Court did so without reference
to telephone number generation. Id. at 1167 (“To qualify as an ‘automatic telephone
dialing system,’ a device must have the capacity either to store a telephone number
using a random or sequential generator or to produce a telephone number using a
32
the clause, not the meaning of the phrase “random or sequential number generator.”
Id. at 1169–70. All other considerations merely “confirm[ed]” the syntactic analysis.
Id. at 1171.
The District Court’s ruling conflicts directly with the Supreme Court’s test in
numerous ways. As discussed below, the Supreme Court’s test is consistent with
the statutory text, with legislative history, and with historic existing FCC regulations,
as well as doctrines established through precedent. The District Court’s ruling
conflicts with all of this and turns the TCPA on its head in multiple ways.
C. The District Court’s Ruling Conflicts with the Plain Language of the
Statute and Ignores Half of the Supreme Court’s Test
“A statute should be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or insignificant.” Corley v.
United States, 129 S.Ct. 1558, 1566 (2009) (quoting Hibbs v. Winn, 542 U.S. 88,
101 (2004)). A “court should give effect, if possible, to every word and every
random or sequential number generator”); 1169 (“We conclude that the clause
modifies both, specifying how the equipment must either “store” or “produce”
telephone numbers. Because Facebook’s notification system neither stores nor
produces numbers “using a random or sequential number generator,” it is not an
autodialer.”); 1171 (“the autodialer definition excludes equipment that does not
‘us[e] a random or sequential number generator’”); 1173 (“This Court must interpret
what Congress wrote, which is that ‘using a random or sequential number generator’
modifies both ‘store’ and ‘produce.’”); 1173 (“We hold that a necessary feature of
an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential
number generator to either store or produce phone numbers to be called.”)
33
provision Congress used” in the statute. Asadi v. G.E. Energy (USA), L.L.C., 720
F.3d 620, 622 (5th Cir. 2013). A court should likewise “interpret [a] statute as a
symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an
harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000); see generally Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, pp. 174–183 (1st ed. 2012) (discussing the surplusage
and harmonious-reading cannons). Upholding the District Court’s ruling would
require both ignoring the Supreme Court’s test for ATDS and drastically overhauling
the plain language of the TCPA.
“The term “automatic telephone dialing system” means equipment which has
the capacity— (A)to store or produce telephone numbers to be called, using a
random or sequential number generator...” 47 § 227(a)(1). To qualify as an ATDS
“a device must have the capacity either to store a telephone number using a random
or sequential generator or to produce a telephone number using a random or
sequential number generator.”) (emphasis added). Facebook , 141 S. Ct. at 1163.
Both the Supreme Court’s test and plain language of the statute emphasize a
disjunctive test for the use of number generators. Either a random or sequential
number generator can be used to “store” or it can be used to “produce.” Soliman
alleged Subway’s system did both. And yet, the District Court held in dismissing
34
her claims that the equipment must use a number generator to generate the phone
numbers themselves.
The canon against superfluity strongly undermines the District Court’s
holding, which categorically excluded “storage” as a component of the disjunctive
test outlined by the statute and reinforced by the Supreme Court. The statute says
“to store or produce” not “to generate.” The District Court, by categorically
excluding dialing platforms that index and store telephone numbers to be called
using number generators, carved out half the test for whether a system is an ATDS.
The language “store or” becomes “inoperative, superfluous, void and insignificant”
with such a ruling, as if it were excised completely from the statute. The District
Court did not give effect to these words that Congress used, and which the Supreme
Court took great effort to separately describe in its test, and even provided
illustrations of how it might be employed in footnote 7. Accordingly, the District
Court’s test is unsupported by the plain language of the statute, as well as by the
Supreme Court’s test in Facebook.
Additionally, an interpretation that the definition of ATDS categorically
precludes dialing from stored lists of telephone numbers would render the prior
express consent requirement mere surplusage. A cornerstone of the TCPA is its
codified affirmative defense - prior express consent. See 47 U.S.C. §§ 227(b)(1)(A)
(“It shall be unlawful for any person within the United States, or any person outside
35
the United States if the recipient is within the United States-- (A) to make any call
(other than a call made for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone dialing system or an
artificial or prerecorded voice”). (emphasis added). Prior express consent is an
affirmative defense to any otherwise-violative conduct under the TCPA. Van Patten
v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); In the Matter of Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd.
559, 565 (Jan. 4, 2008); APX-95 (“The use of automatic dialing machines which
play recorded messages should be reasonably restricted, except where a called party
has given prior consent to receive the recorded message.”).
An autodialer that is required to self-generate its own lists of numbers to dial,
as opposed to dialing from a stored list, could never be used in compliance with the
TCPA because there is by definition a lack of consent from an individual whose
number is randomly generated. These two concepts are mutually exclusive. It is not
only fanciful to imagine, but axiomatically impossible, for there to exist only
automated dialing technology that self-generates lists of numbers, in the same
universe where stored lists of numbers belonging to consumers that have consented
to receive autodialer communications are being exclusively called. And yet, entire
regulatory schemes exist to create standards for what is and is not prior express
consent. Dozens of circuit cases talk about what it means to consent to a robocall.
36
The plain language of the statute codifies an affirmative defense for users of
autodialer technology so long as they call only those people that consent to receive
such calls. Regulations have been adopted. Companies (including Subway) spend
resources obtaining consumer contact information to attempt to comply with the
written consent requirements when placing calls using otherwise-prohibited
technology.
Indeed, Subway’s own position regarding consent undermines its view of
what constitutes an ATDS. One cannot “consent” to autodialing if by axiom
autodialing cannot be performed to a limited list of those who have so consented.
And so it follows that by requiring self-generation as a component of the statute, the
District Court’s definition of ATDS axiomatically excises an entire canon of
codified doctrine right out of the plain language of the statute. These two concepts
cannot be reconciled.
Reading a statute in a manner which renders core portions of the statute mere
surplusage should be avoided when interpreting a statute. See Duncan v. Walker,
533 U.S. 167, 174, (2001) (“We are especially unwilling” to treat a statutory term as
surplusage “when the term occupies so pivotal a place in the statutory scheme”).
The canon assists “where a competing interpretation gives effect to every clause and
word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct. 2238, 2240
(2011). Consent is an inextricable component of the TCPA, as it is in any invasion
37
of privacy statute, because it is not an invasion of privacy if it has been permitted.
Guests are not intruders by virtue of their mere presence in one’s homes. Yet the
plain language of the TCPA can clearly be read two ways with respect to whether or
not an ATDS must self-generate the numbers it autodials.
There exists a reading of the TCPA where autodialers do not self-generate
lists, but there is no TCPA without the affirmative defense of consent, because
consent cannot coexist with autodialers that cannot dial stored lists of numbers. The
District Court’s Order, if upheld, would require two sections of the TCPA (47 §
227(a)(1) and 47 U.S.C.A. §§ 227(b)(1)(A)) to be rewritten to say something
materially different from what Congress enacted, and what the Supreme Court
reinforced in Facebook. The District Court’s Order is therefore in error and must be
reversed.
D. Legislative History and FCC Rulings Support Predictive Dialers Being
an ATDS, and SMS Blasters are Programmed Using the Same Number
Generator Functions
To illustrate this point further, the legislative history and early FCC rulings
on the TCPA support the conclusion that Facebook did not disturb the TCPA’s
application to predictive dialers, which by extension, applies to the SMS blaster
alleged by Soliman. Predictive dialers, like SMS blasters, dial databases of
telephone numbers in an automated fashion using campaign features, which rely
38
upon random or sequential number generators to both store and produce the
telephone numbers to be called.
28
Similar to SMS blasters, “predictive” dialers also
call from a stored list of phone numbers, but utilize algorithms to “predict” when an
agent will receive a live answer. This is described in the 2003 FCC Order, as well
as in Amicus briefing in Facebook. APX-56-85.
The discussion of “predictive dialers” in the FCC’s 2003 decision is
particularly instructive on the importance of automation as it relates to the TCPA.
The FCC described predictive dialers as follows:
[A] predictive dialer is equipment that dials numbers and, when certain
computer software is attached, also assists telemarketers in predicting
when a sales agent will be available to take calls. The hardware, when
paired with certain software, has the capacity to store or produce
numbers and dial those numbers at random, in sequential order, or from
a database of numbers. ... The principal feature of predictive dialing
software is a timing function, not number storage or generation.
Household Financial Services states that these machines are not
28
A recent Third Circuit’s ruling suggests that traditional predictive dialers, which
operate and are programmed identically to the SMS blaster allegedly used in this
case, would be an ATDS because they rely upon number generators store and
produce telephone numbers to be called. Panzarella v. Navient Solutions, Inc., 37
F.4th 867 (3
rd
Cir. 2022) (dismissing plaintiff’s claims on grounds that the dialer was
being used in preview mode and was detached from the random or sequential number
generators but suggesting that it would be an ATDS had it been used in automated
predictive or power dialer mode). Panzarella suffers from the timing of the appeal
happening during Facebook, and therefore not having dialer code in the evidentiary
record. Its ruling regarding random or sequential number generation can best be
described as uninformed dicta. The present case offers a better vehicle to clarify
what a random or sequential number generator is, and how it must be integrated into
the dialer’s source code in order to qualify as an ATDS.
39
conceptually different from dialing machines without the predictive
computer program attached.
2003 FCC Order, 18 F.C.C. Rcd. At 14091 (footnotes omitted). Acknowledging
the statutory definition of an ATDS, the FCC explained:
The statutory definition contemplates autodialing equipment that either
stores or produces numbers. ... It is clear from the statutory language
and the legislative history that Congress anticipated that the FCC, under
its TCPA rulemaking authority, might need to consider changes in
technologies. In the past, telemarketers may have used dialing
equipment to create and dial 10-digit telephone numbers arbitrarily. As
one commenter points out, the evolution of the teleservices industry has
progressed to the point where using lists of numbers is far more cost
effective. The basic function of such equipment, however, has not
changed–the capacity to dial numbers without human intervention. ...
The legislative history also suggests that through the TCPA, Congress
was attempting to alleviate a particular problem—an increasing number
of automated and prerecorded calls to certain categories of numbers. ...
Coupled with the fact that autodialers can dial thousands of numbers in
a short period of time, calls to these specified categories of numbers are
particularly troublesome. Therefore, to exclude from these restrictions
equipment that use predictive dialing software from the definition of
“automated telephone dialing equipment” simply because it relies on a
given set of numbers would lead to an unintended result.
Id. at 14091-32 (footnotes and paragraph numbering omitted). The FCC found
predictive dialers met the definition of an ÁTDS even though the calls were made
from a list. In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot.
Act of 1991, 30 F.C.C. Rcd. 7961, 7973 (2015) (In 2003, “[t]he Commission stated
40
that, even when dialing a fixed set of numbers, equipment may nevertheless meet
the autodialer definition”). Predictive dialers are an ATDS.
29
The terms “predictive dialer,” “SMS blaster” and “campaign” never appear in
the Supreme Court’s ruling in Facebook, nor does the order ever suggest that
campaign-based dialers are not an ATDS.
30
It is also worth mentioning that
Facebook was not using an SMS blaster, but a completely different type of system
that sent responsive text messages based on an organic triggering event. The
Supreme Court did not say that SMS blasters are not an ATDS. They were not
presented with that question. They were not presented with that fact pattern, or the
system specifications or the code for such a system. Indeed, the ruling suggests that
reading the Supreme Court’s order as precluding an ATDS finding as to such
technology would “greatly overstate[] the effects of accepting Facebook’s
interpretation.” Facebook, 141 S. Ct. at 1173. This is consistent with the history of
29
Even the FCC’s first ruling on the TCPA in 1992 recognized the importance of
restrictions on equipment such as predictive dialers. Referring in part to “predictive
dialers” to place live solicitation calls (7 F.C.C. Rcd. 8752, 8756 (F.C.C. September
17, 1992)), the FCC then opined that “both live [referring again to live solicitation
calls, such as with a predictive dialer] and artificial or prerecorded voice telephone
solicitations should be subject to significant restrictions” (Id.).
30
The Supreme Court had every opportunity to discuss predictive dialers in
Facebook, because undersigned counsel put the issue before the Court. APX-56-85.
Why would nine Justices ignore this issue entirely? Because campaign-based dialers
were not before the Court, and there was no contention that Facebook’s system relied
on campaign dialing or number generation.
41
autodialers, which have been dialing stored lists of numbers since the 1970s.
31
Predictive dialers, which dial stored lists of numbers using algorithms, have been
prohibited since the passage of the TCPA, and have historically been prohibited by
the FCC ever since.
32
And if predictive dialers are an ATDS, an SMS blaster would
be as well because they function the same, both dial databases using campaigns, and
both rely on the same number generator code to do so. Accordingly, the District
Court’s interpretation of a random or sequential number generator and finding that
a system must self-generate telephone numbers is in conflict with the legislative and
regulatory history of the TCPA.
E. Courts After Facebook Have Agreed that Dialers do not Need to Self-
Generate Telephone Numbers to be an ATDS
The District Court cited to some courts which agreed that an ATDS must self-
generate telephone numbers. However, many courts do not agree with this
interpretation of Facebook. Many courts have held that allegations relating to SMS
31
See extensive discussion of predictive dialer patents at APX-56-85.
32
See Hearing Before the Subcommittee on Communications of the Committee on
Commerce, Science and Transportation, United States Senate One Hundred Second
Congress First Session July 24, 1991, Testimony of Robert Bulmash and Steve
Hamm at pgs 11, 16, 19, 24-25, and 27; 7 FCC Rcd. 8752, 8756 (F.C.C. September
17, 1992) at ¶¶ 8-9; In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 ¶¶
131-134 (2003) at ¶¶ 8 fn 31, 131, and 146; see also 47 C.F.R. §§ 64.1200(a)(5-7)
(prohibiting predictive dialing with certain abandonment rates, i.e. technology which
automatically dials stored lists through campaigns).
42
blasters and traditional predictive dialing systems (which use number generators in
the same manner as SMS blasters) are sufficient to survive the pleadings. One court
found that SMS blast telemarketing messages from a long code telephone numbers
sufficiently stated a claim where it was alleged that the platform could “store
telephone numbers, generate sequential numbers, dial numbers in a sequential order,
and dial numbers without human intervention.” Montanez v. Future Vision Brain
Bank, LLC, 536 F.Supp.3d 828, 838 (D. Co. April 29, 2021).
Dozens of courts have ruled similarly. Atkinson v. Pro Custom Solar LCC,
2021 WL 2669558 (W.D. TX June 16, 2021) (ATDS allegations survive pleadings
where plaintiff alleges a use of a random or sequential number generator to
determine dial sequence);
33
Republican Senatorial Committee, 551 F.Supp.3d 724
(W.D. TX July 27, 2021) (generic mass texts sufficient to plead ATDS); Poonja v.
Kelly Services, Inc., 2021 WL 4459526 (E.D. IL, Sept. 29, 2021) (“stop” instruction
in generic text sufficient to survive pleadings);
34
Garner v. Allstate Insurance
Company, 2021 WL 3857786 (N.D. IL Aug. 30, 2021) (allegation of predictive
dialer which spoofed telephone number consistent with ATDS);
35
Callier v.
GreenSky, Inc., 2021 WL 2688622 (W.D. TX May 20, 2021) (same); Jance v.
33
This is exactly what Soliman alleged, but in much greater detail, and with actual
examples and illustrations of number generators in actual dialer code.
34
Soliman’s text messages shown above contain a stop message
35
Soliman alleged spoofing.
43
Homerun Offer LLC, 2021 WL 3270318 (D. AZ July 30, 2021) (same); MacDonald
v. Brian Gubernick PLLC, 2021 WL 5203107 (D. Az. Nov. 9, 2021) (automatically
dialing through imported lists of leads sequentially with a power dialer sufficiently
states claim); McEwen v. National Rifle Association of America, 2021 WL 5999274
(D. ME Dec. 20, 2021) (rejecting the notion that an ATDS must self-generate
telephone numbers).
Other decisions support Plaintiff’s reading of a random or sequential number
generator referring to programming code, and not to a telephone number generator.
In Barnett v. Bank of America, 2021 WL 2187950 (W.D.N.C. May 28, 2021), the
court agreed that an ATDS did not need to self-generate telephone numbers.
However, it observed that plaintiff had not presented evidence that the source code
relied on number generation. Timms v. USAA Federal Savings Bank, 543 F.Supp.3d
294 (D. SC June 9, 2021) extensively discussed Facebook and its discussion in
footnote 7 and held that an ATDS need not self-generate telephone numbers, but
instead may rely on number generators to store telephone numbers to be called later.
Id. at 299-302.
Most notable in this discourse is the current split emerging within the Ninth
Circuit, which issued two ATDS orders in the last month: Borden v. eFinancial,
LLC, 53 F.4th 1230 (9
th
. Cir. 2022) (“Borden”), and Brickman v. United States, 2022
WL 17826875 (9
th
Cir. Dec. 21, 2022) (“Brickman”). Borden supports Subway’s
44
position and would uphold the District Court’s Order.
36
However, interestingly, just
a few weeks later, the Brickman court followed Borden on purely stare decisis
principles, while including a strong concurring opinion from Judge Van Dyke, which
refuted the Borden reasoning. Judge Van Dyke’s opinion supports the reading of
the statute argued by Soliman, and suggests even within the Ninth Circuit, there is
disagreement about the validity of Borden.
Judge Van Dyke took issue with Borden for several reasons, all ultimately
amounting to justification for why number generator does not mean the same thing
as telephone number generator. Id. at *2-4. First, Borden’s analysis overlooks the
phrase random or sequential number generator clearly being a tool of computer
programming, which should be given its technical meaning, not a colloquial
definition. Second, Judge Van Dyke reasoned that a phone number is comprised of
numbers much like a wooden chair is made of wood, but that it does not follow that
the definition of number should be restricted to telephone numbers any more than
the term wooden would (in the context of a wooden chair) preclude application of
the term “wood” to a wood lathe. It is more plausible to attribute the technical
application of “random number generator” under a plain meaning analysis than to
insert limiting descriptive terms not part of the definition crafted by Congress and
36
Subway will no doubt rely heavily on Borden in its Brief. Soliman will respond
to those arguments in her Reply.
45
conflating the term with “random telephone number generator.” Judge Van Dyke
also points out that interpretation of the definition in such a manner would render
Footnote 7 of the Facebook decision nonsensical, and courts are bound by Supreme
Court authority on the subject. Therefore, “[t]he fundamental interpretive
assumption underlying the Borden decision is just wrong.” Id. at *3.
Judge Van Dyke goes on to observe that Borden nullifies the significance of
the word “store” in the statute, rendering it mere surplusage, which violates canons
of construction and “mangle[s] the text’s meaning” and further conflicts with the
Supreme Court’s emphasis on storage as one of the disjunctive elements of the
ATDS definition as justification for why it overturned Marks v Crunch. Id. at *3.
Judge Van Dyke further goes on to address that there is no substance to the fear that
giving meaning to the phrase “store” would turn every cell phone into an ATDS,
because for a dialing system to be an ATDS, it must not simply store telephone
numbers, but use random or sequential number generators to store those numbers,
for the purpose of automatically calling them in that order using the same dialing
system (as indicated by the statutory text “to be called”). Finally, Judge Van Dyke
acknowledges the broader purpose of the TCPA, which is to prohibit automatic
dialing that could create nuisance to commercial and residential consumers. Id. at
*4, citing H. R. Rep. No. 102–317, p. 24 (1991); see also Duguid, 141 S. Ct. at 1167
46
(“Autodialers could reach cell phones, pagers, and unlisted numbers,
inconveniencing consumers and imposing unwanted fees.”).
The concurring opinion in Brickman recites a correct reading of the law, and
a compelling criticism of the reasoning of the Borden court, and by extension, the
District Court’s opinion. The Second Circuit should follow Judge Van Dyke’s
opinion, which is more well-reasoned than Borden. Soliman acknowledges there
are cases on both sides of this debate but holding that self-generation of telephone
numbers is the standard would go beyond any reasonable reading of what Congress
intended to prohibit, and what the Supreme Court held in Facebook. Judge Van
Dyke’s concurrence in Brickman got this right.
F. The District Court Erred Procedurally by Failing to Accept Plaintiff’s
Allegations as True
As described above, pursuant to authority from this Court and the Supreme
Court, the procedural standards under Rule 12(b)(6) require courts to accept well
pled allegations as true and read them with all inferences drawn in favor of plaintiff.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Well-pled allegations must be upheld
on the pleadings to seek evidence in support thereof, even if there is only a remote
chance of success. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Twombly, 550 U.S.
at p. 556.
47
Soliman’s First Amended Complaint alleges facts which, when viewed, in the
light most favorable to Soliman, plausibly suggest that Subway contacted her on her
cellular telephone through the use of an ATDS. Soliman alleges she received SMS
blast messages, sent using a system that operated similarly to a traditional predictive
dialer, via short code, involving generic spam messages sent without her consent and
after her clear revocation of consent, and that there was no human intervention
involved in their transmission. Soliman also asserted that random or sequential
number generators were used both to store her telephone number through indexing,
and then to produce her telephone number via indexed storage to the dialer, to be
called. Soliman provided actual dialer code from a dialing system similar to the one
Subway used, which relied upon a sequential number generator to do so, giving
further credence to the legitimacy of her allegations.
Conclusions regarding Soliman’s TCPA claims are more appropriately drawn
at summary judgment, after discovery regarding the specifications of the dialer and
expert review. This is even more true where possession of the dialer code is solely
within possession of the defendant, precluding Soliman any access to the very
information she would otherwise need to state a valid claim. Carolina Cas. Ins. Co.
v. Team Equipment, Inc., 741 F.3d 1082, 1087 (9
th
Cir. 2014). The District Court
therefore erred in granting the motion to dismiss.
Many courts post-Facebook elected to follow this approach rather than issue
48
preemptive rulings denying plaintiffs their right to discovery. Miles v. Medicredit,
Inc., No. 4:20-CV-01186 JAR, 2021 WL 2949565, at *4 (E.D. Mo. July 14, 2021);
Bell v. Portfolio Recovery Assocs., LLC, No. 5:18-CV-00243-OLG, 2021 WL
1435264, at *1, fns. 4-5 (W.D. Tex. Apr. 13, 2021); Montanez v. Future Vision Brain
Bank, LLC, No. 20-CV-02959-CMA-MEH, 2021 WL 1697928, at *7 (D. Colo. Apr.
29, 2021); Gross v. GG Homes, Inc., No. 3:21-CV-00271-DMS-BGS, 2021 WL
2863623, at *7 (S.D. Cal. July 8, 2021); Atkinson v. Pro Custom Solar LCC, No.
SA-21-CV-178-OLG, 2021 WL 2669558, at *1 (W.D. Tex. June 16, 2021); Jance
v. Home Run Offer LLC, No. CV-20-00482-TUC-JGZ, 2021 WL 3270318, at *3 (D.
Ariz. July 30, 2021); Garner v. Allstate Ins. Co., No. 20-C-4693, 2021 WL 3857786
at *4 (N.D. Ill. Aug. 30, 2021) (citing Vance v. Bureau of Collection Recovery LLC,
No. 10 C 6324, 2011 WL 881550, at *2 (N.D. Ill. Mar. 11, 2011)).
Soliman plausibly alleges that Subway utilized an ATDS or, stated differently,
“equipment which has the capacity to store or produce telephone numbers to be
called, using a random or sequential number generator; and to dial such numbers.”
Without the benefit of discovery, Soliman lacks the ability to specifically identify
the code in Subway’s system, however, under the pleading standards of the TCPA,
she alleged sufficient facts to plausibly suggest the system qualifies as an ATDS.
For these reasons, Soliman should be given the opportunity to discover the exact
specifications of Subway’s dialing system.
49
II. Soliman’s Complaint Alleges Use of an Artificial Voice
Subway’s SMS blasts are artificial voices, in addition to having been sent via
an ATDS. This is based on a plain language interpretation, as well as the statutory
history, and cannons of construction regarding remedial statutes like the TCPA. The
District Court erred in finding otherwise. Unlike the ATDS issue, which concerns
questions of law, fact, and procedure, this is a pure question of law.
The starting point of statutory interpretation lies in the plain language.
Soliman bases her allegations on definitions from the dictionary of “artificial” and
“voice.” Those definitions are as follows: Artificial - “humanly contrived often on
a natural model: man-made <an [artificial] limb> <[artificial] diamonds>.” Another
definition is “lacking in natural or spontaneous quality.” Webster’s Ninth New
Collegiate Dictionary, 106 (1991).
The District Court seemed persuaded that Subways’ text messages were
artificial. Like a traditional artificial voice phone call, Subway’s messages were not
organic. An organic text message would involve a live person sending it. Organic
text messages are interactive – one can respond to them and receive a natural
response back from a person, not a machine. Subway’s message was drafted in
advance and stored in a computer and blasted out to the masses at a later
preprogrammed time. It lacked spontaneous quality. Its transmission was incapable
of natural alteration, or natural response. The timing of when and how it was to be
50
sent were determined by a computer, not a person. A robot sent the message.
Clearly, it is artificial.
Subway only challenged, and the District Court only took issue with the
question of whether the transmission of an artificial text message constitutes a
“voice.” It is true that there are definitions of “voice” which hinge on oral
utterances, vocal cords, and the like, such as the definition cited by the District
Court in its order dismissing the claims. However, there are dictionary definitions
that extend voice to other forms of communication. An illustrative question
frames this issue: do mute persons not have a voice under its common parlance?
Can they not voice opinions, or concerns? Can they speak or express themselves
using other tools as their voice? They clearly can and do. That is why, in part,
there are multiple definitions of the word voice.
The sole legal question that must be answered by this Court is whether
Soliman’s interpretation of “voice,” which is supported by some definitions in the
dictionary, and by common usage, is so strained that “voice” is entirely
unambiguous. This would foreclose review of the weight of authority (discussed
below), which overwhelmingly supports Soliman’s reasoning. If this question of
ambiguity is overcome, Soliman has stated a valid theory of liability.
51
A. Voice is an Ambiguous Term
The District Court’s reasoning is strained in multiple ways. The Court found
that it was inconceivable that Congress had intended to extend oral voice calls to
written communications in text messages. According to the District Court, the only
definition of “voice” that Congress could have intended would have been “[s]ound
formed in or emitted from the human larynx in speaking.”
The problem with this reading is multifaceted. First, a statutory definition of
voice which requires use of human larynx would axiomatically preclude artificial
voices. Artificial voices do not require use of a “human larynx” and are not produced
by any organic being, much less a human. They are not oral utterances at all. They
are inorganic noises created by computers. There is very little factual distinction
between a computer which reads text communication and translates that
communication into an artificial audible noise over a telephone and a computer
which bypasses this step and simply sends the same text communication directly to
a person’s cellular telephone. Either way, there can be no doubt that under the
District Court’s application of its definition of “voice” there is no such thing as an
“artificial voice.” And so, that cannot be the correct definition, because such a
definition excises words from the statute.
Second, the Court’s focus on audible oral utterances implicitly conflicts with
existing binding FCC Rules, recognized by Courts, which recognize that a text
52
message is a call under the TCPA. In Satterfield v. Simon & Schuster, Inc., 569 F.3d
946 (9th Cir. 2009), the Ninth Circuit held that a text message is a “call” within §
227(b)(1)(A), applying Chevron deference and deferring to the FCC’s interpretation
of the term. Id. at 953-54. Even Facebook concerned a text message which was
considered a call. As discussed supra, statutes must be read in harmony.
The TCPA prohibits “any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. §
47(b)(1)(A). If a text message is a call, then the disjunctive test (either an ATDS, or
an artificial or prerecorded voice) would have to be modified to exclude the second
disjunctive element of the test entirely, because there would not be such a thing as
an artificial voice for calls that are text messages. Stated otherwise, in the case of a
traditional call, the TCPA prohibits “using any automatic telephone dialing system
or an artificial or prerecorded voice,” but in the case of a text message, the TCPA
only prohibits “using any automatic telephone dialing system.” As discussed above,
a statute must give meaning to all words written therein by Congress, and not result
in surplusage.
Thus, the District Court’s interpretation of the statute is inharmonious. Such
a reading excises the term “artificial” from the statute, as well as leading to
53
surplusage in the context of artificial calls when those calls are placed via SMS
messages. Accordingly, the term voice should be treated as ambiguous.
B. Voice Should Be Interpreted Broadly
There are several reasons to believe the definition of voice targeted by
Congress should be interpreted broadly. The purpose of the TCPA is to protect
consumer privacy from intrusive telephone communications. The legislative
history
37
is clear that the original focus on artificial voice technology prohibition was
the fact that such communications involved agentless calls.
38
“NACAA officials concluded that complaints about machine-generated
telephone calls is one of the fastest growing categories of complaints.
The public at least deserves the right to slam the telephone receiver
down and have a real person on the other end of the line bear just how
frustrated and angry those calls make people and should also have the
ability to limit these intrusive calls.”
APX-94.
Mr. Hamm went on to distinguish agentless (artificial/prerecorded calls) from
those which were live operator assisted (ADADs).
39
APX-94-95. Indeed, the
legislative history numerously emphasizes that the artificial/prerecorded voice
prohibitions hinge on the fact that the calls are agentless, i.e. the lack of having a
37
Where a statute is ambiguous it is appropriate to look to legislative history.
Nakano v. United States, 742 F.3d 1208, 1214 (9th Cir. 2014).
38
Soliman believes that the crux of an artificial voice being prohibited by Congress
stems from a desire to prohibit agentless telephone communications.
39
For purposes of this analysis, ADAD is historically equivalent to ATDS.
54
conversation with someone on the other side who can respond to questions or
frustration, and instead receiving a static, one-sided message.
40
Soliman was subject
to such indignity, as she texted “stop” and because only a computer was on the other
end, nobody honored her request to cease the intrusive communications. Congress
was being presented with two distinct privacy threats – automated calls sent in high
volumes with a computer involving a live agent (campaign/predictive dialers), and
agentless calls where consumers were deprived of the dignity of expressing their
frustration because only a computer lay at the other end of the telephone
(artificial/prerecorded voice).
41
The goal of the statute is served by interpreting
40
APX-93. (“[O]ne of the constant refrains that I hear . . . from consumers and
business leaders who have gotten these kinds of computerized calls is they wish they
had the ability to slam the telephone down on a live human being so that that
organization would actually understand how angry and frustrated these kinds of calls
make citizens, and slamming a phone down on a computer just does not have the
same sense of release.”); 137 Cong. Rec. S18785-01, S18786 (Nov. 27, 1991)
(“Autodialers have grown in use because, as a New York Times story put it, ‘they
don’t eat, they don’t sleep and their feelings never get hurt when people curse them
or hang up on them. They just call and call and call-each one up to 1,500 times a
day.’”); 137 Cong. Rec. H11307-01, H11312 (Nov. 26, 1991) (“[R]obotic calls by
machines such as autodialers and computer-generated voices to be a much greater
threat to the privacy of our homes than calls by live operators. At least you can vent
your anger to a real person if they have interrupted your dinner. You can ask them
questions and hold them accountable to some extent.”).
41
The FCC agreed with this distinction. In 1992, the FCC’s first ruling on the TCPA
recognized the importance of restrictions on equipment two separate types of
equipment: “live,” which were generally understood to be predictive dialer calls, and
“artificial or prerecorded voice” which were characteristically agentless. In the
Matter of Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, 7 FCC Rcd. 8752, 8756-57 (F.C.C. September 17, 1992). Similarly,
55
“voice” under a broad definitions offered by the dictionary.
The TCPA is a remedial statute intended to protect consumers from unwanted
automated telephone calls and messages, it should be construed in accordance with
that purpose. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1047 (9th
Cir. 2017) (citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270 (3d Cir. 2013)).
Because the TCPA is a remedial statute, it “should be construed broadly to effectuate
its purposes.” Caplan v. Budget Van Lines, Inc., No. 220CV130JCMVCF, 2020 WL
4430966, at *3 (D. Nev. July 31, 2020). Any ambiguities in the statutory text must
be construed in the consumers’ favor, under well-understood canons of construction.
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51, 58 (2d Cir. 2017). A
remedial statute “is entitled to a broad interpretation so that its public purposes may
be fully effectuated.” Marriott v. National Mut. Cas. Co., 195 F.2d 462, 466 (10th
Cir. 1952).
The dueling dictionary definitions as to the term “voice” are such an
the Sixth Circuit held, “Congress drew an explicit distinction between ‘automated
telephone calls that deliver an artificial or prerecorded voice message’ on the one
hand and ‘calls placed by ‘live’ persons’ on the other.” Ashland Hosp. Corp. v. Serv.
Employees Int’l Union, Dist. 1199 WV/KY/OH, 708 F.3d 737, 743 (6th Cir. 2013).
Additionally, the FTC has observed that artificial and prerecorded voice calls are by
their very nature one-sided conversations, and if there is no opportunity for
consumers to ask questions, offers may not be sufficiently clear for consumers to
make informed choices before pressing a button or saying yes to make a purchase.
73 FR 51164-01, 51167 (Aug. 29, 2008). Subway’s SMS blasting platform
accomplishes an identical goal of transmitting agentless one-sided messages.
56
ambiguity. Construing the ambiguity in Soliman’s favor serves the policy
underlying the prohibition on artificial communications. This is similar to analysis
in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009), where
the Court found a “call” under the TCPA includes text messages because such
definition “is consistent with the dictionary’s definition of call in that it is defined
as ’to communicate with or try to get into communication with a person by
telephone’ ” and because it ”is also consistent with the purpose of the TCPA—to
protect the privacy interests of telephone subscribers.”
Thus, voice should apply to any telephonic communication covered by the
statute pursuant to 47 U.S.C. § 227(b)(1)(A). Clearly, the emphasis of the statute
was on prohibiting one-sided conversations. SMS blasts are just that. Soliman could
only slam the phone down on a robot, just like the consumers Mr. Hamm pled with
Congress to protect from such indignity when they enacted the TCPA. The
dictionary supports this as a possible interpretation, and the legislative history
contemplates any agentless communication being an artificial voice. Accordingly,
canons of construction strongly support Plaintiff’s reading of the statute.
CONCLUSION
For the foregoing reasons, the District Court erred in granting Subway’s
motion to dismiss Soliman’s claims. Soliman respectfully requests that this Court
57
reverse the District Court ruling and order the District Court to reinstate Soliman’s
complaint.
Dated: December 27, 2022
Respectfully submitted,
By:
/s/ Adrian R. Bacon
Adrian R. Bacon, Esq.
Brenden P. Leydon, Esq.
WOCL & LEYDON, L.L.C.
Todd M. Friedman (Cal. SBN 216752)
Adrian R. Bacon (Cal. SBN 280332)
Pro hac vice
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
Attorneys for Appellant Marina Soliman
58
CERTIFICATE OF COMPLIANCE FOR BRIEFS
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because, according to the word-processing software used to generate
the brief, it contains 13,966 words, excluding the parts exempted by Fed. R. App.
P. 32(f).
This brief additionally complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
it has been prepared in a proportionally-spaced typeface using Microsoft Word in
14-point Times New Roman font.
Dated: December 27, 2022
BY: /s/ Adrian R. Bacon
Adrian R. Bacon, Esq.
THE LAW OFFICES OF TODD M. FRIEDMAN, P.C.
59
CERTIFICATE OF SERVICE
I, Adrian R. Bacon, certify that on December 27th, 2022, the MARINA
SOLIMAN’S OPENING BRIEF was e-filed through the CM/ECF System,
registration as a CM/ECF user constitutes consent to electronic service through the
Court’s transmission facilities. The Court’s CM/ECF system sends an email
notification of the filing to the parties and counsel of record listed above who are
registered with the Court’s EMC/ECF system. A copy of the e-filed documents
were sent, via the EMC/ECF system
Dated: December 27, 2022
BY: /s/ Adrian R. Bacon
Adrian R. Bacon, Esq.
THE LAW OFFICES OF TODD M. FRIEDMAN, P.C.
