22-1726-cv Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Submitted: October 24, 2023 Decided: May 10, 2024)

Docket No. 22-1726-cv

MARINA SOLIMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellant,

v.

SUBWAY FRANCHISEE ADVERTISING FUND TRUST, LTD.,

Defendant-Appellee,

AND DOES, 1 THROUGH 20, INCLUSIVE, AND EACH OF THEM,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Before: CHIN AND PARK, Circuit Judges, and NARDACCI, District Judge. *

* Judge Anne M. Nardacci, of the United States District Court for the Northern District

of New York, sitting by designation. Appeal from a judgment of the United States District Court for the

District of Connecticut (Meyer, J.), granting defendant-appellee's motion to

dismiss for failure to state a claim. Plaintiff-appellant received a marketing text

message to her cell phone sent by an automated system using a pre-existing list

of telephone numbers. She alleged that the text message violated the Telephone

Consumer Protection Act,

. The district court concluded that the

statute did not apply and dismissed the first amended complaint.

AFFIRMED.

Judge Nardacci concurs in part and dissents in part in a separate opinion.

____________________________

Todd M. Friedman, Adrian R. Bacon, Law Offices of Todd M. Friedman, P.C., Woodland Hills, CA, - and - Brenden P. Leydon, Wocl & Leydon, L.L.C., Stamford, CT, for Plaintiff-Appellant Marina Soliman.

Ian C. Ballon, Lori Chang, Greenberg Traurig, LLP, Los Angeles, CA, and Brian T. Feeney, Greenberg Traurig, LLP, Philadelphia, PA, for Defendant-Appellee Subway Franchisee Advertising Fund Trust, Ltd.

____________________________

-2- CHIN, Circuit Judge:

Plaintiff-appellant Marina Soliman sued defendant-appellee Subway

Franchisee Advertising Fund Trust, Ltd. ("Subway") for damages based on a text

message she received on her cell phone offering her a free bag of potato chips.

She contended that the text message, which was generated by an automatic

dialing system using a pre-existing list of telephone numbers, violated the

Telephone Consumer Protection Act of 1991 (the "TCPA"),

.

Because we conclude that the text message did not violate the TCPA, we affirm

the order of the district court (Meyer, J.) granting Subway's motion to dismiss

and its judgment dismissing the first amended complaint.

STATEMENT OF THE CASE

I. Facts

As alleged in the first amended complaint (the "Complaint"), the

facts are as follows:

Prior to December 1, 2016, Subway sent one or more automated

marketing text messages to Soliman's cell phone. On December 1, 2016, Subway

sent another automated marketing text message to Soliman's cell phone, which

read:

-3- 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

Joint App'x at 127.

Soliman responded to the message by texting "STOP." Subway

immediately responded with a computer-generated response advising Soliman

that she had been "unsubscribed from all programs" and that she would "no

longer receive any text alerts."

Nonetheless, on December 5, 2016, Subway

sent another automated text message to Soliman's cell phone, stating:

Your weekly SUBWAY offer is waiting, Don't miss out! Expires 12/6: http://mfon.us/rk6srrfdjue HELP/STOP call 8447887525

Subway sent the text messages to Soliman's cell phone using "short

message script" ("SMS") technology. Subway used an automated text-messaging

system that was able to "dial telephone numbers stored as a list or in a database

without human intervention."

. Subway had contracted with Mobivity

to provide SMS text-messaging services, and Mobivity employed a "blast

platform" that used:

an algorithm whereby a random or sequential number generator, similar to a randomization formula or sequential dialing formula, selects which number to dial from the stored list of numbers, and

-4- sequences those numbers in order to automatically dial the numbers and send ou[t] text messages en masse.

.

We note additional facts that are not alleged in the Complaint but

that are undisputed:

Subway's system did not generate telephone numbers, as Subway's

system used a "stored" or pre-existing list of telephone numbers. Nor was

Soliman's cell phone number generated by Subway's system. Rather, as we noted

in a prior decision in this matter, Soliman submitted her cell phone number to

Subway earlier in the year by taking advantage of an offer to have Subway

"deals" sent "directly" to her phone. Soliman v. Subway Franchisee Advert. Fund Tr.,

Ltd.,

, 831-32 & n.1 (2d Cir. 2021). 1 She did so by texting "Subway" to

the code provided in a Subway advertisement, thereby providing Subway with

her cell phone number. She received an immediate response from Subway and

then texted her zip code back, thereby confirming her consent to receiving

Subway offers through her cell phone.

.

II. Prior Proceedings

1 The earlier appeal involved the enforceability of an arbitration provision on Subway's website. We held that Soliman was not bound by the arbitration clause because the terms were not reasonably "clear and conspicuous."

. -5- On April 22, 2019, Soliman filed this putative class action below.

She filed the Complaint on July 29, 2021, alleging that Subway's December 5,

2016 text sent to her cell phone violated the TCPA in two ways: (1) by using an

automatic telephone dialing system and (2) by using an "artificial or prerecorded

voice." See

(b)(1)(A)(iii). Subway moved to dismiss the Complaint

pursuant to Fed. R. Civ. P. Rule 12(b)(6) on August 30, 2021.

On July 18, 2022, the district court issued an order granting

Subway's motion to dismiss, concluding that both claims failed. Soliman v.

Subway Franchisee Advert. Fund Tr., Ltd., No. 19-cv-592 (JAM),

(D. Conn July 18, 2022). First, the district court held that the TCPA only bars the

use of a dialing system that randomly or sequentially generates telephone

numbers, and not a system that relies on a stored list of pre-existing telephone

numbers and only generates indexing or other coding numbers. 2 Second, the

district court held that the TCPA's prohibition on the use of an "artificial or

prerecorded voice" did not apply to text messages.

. Judgment

dismissing the Complaint was entered accordingly on July 18, 2022.

2 Soliman argues that certain numbers used in an SMS blaster's programming code are "generated" in a fashion that renders that device an ATDS. We will refer to these sorts of numbers as "coding numbers. " -6- This appeal followed.

DISCUSSION

We review a decision to grant a motion to dismiss under Fed. R. Civ.

P. 12(b)(6) de novo. See Nicosia v. Amazon.com, Inc.,

(2d Cir.

2016).

I. The TCPA

The TCPA provides in pertinent part:

It shall be unlawful for any person . . . 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 . . . to any telephone number assigned to a . . . cellular telephone service.

(b)(1)(A)(iii) (emphases added). An "automatic telephone dialing

system" -- or "ATSD" -- is defined as:

equipment which 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.

(a)(1).

In creating the TCPA, Congress sought to address the "proliferation

of intrusive, nuisance calls" made by telemarketers. ACA Int'l v. FCC, 885 F.3d

-7- 687, 692 (D.C. Cir. 2018) (citing Tel. Consumer Prot. Act of 1991, Pub. L. No. 102-

243, § 2(6)-(7),

). Of particular concern were automated calls to

emergency services, "such as hospitals and fire and police stations," calls that

"w[ould] not disconnect the line for a long time after the called party h[u]ng[] up

the phone, thereby preventing the called party from placing his or her own calls,"

and calls placed by "automatic dialers [that would] dial numbers in sequence,

thereby tying up all the lines of a business [with multiple, sequential lines] and

preventing any outgoing calls." S. Rep. No. 102-178, at 2 (1991). The TCPA thus

prohibits the use of an ATSD to call certain "emergency telephone line[s]" and

lines for which the "party is charged for the call,"

(b)(1)(A)(i), (iii),

and it also bars using an ATSD "in such a way that two or more telephone lines

of a multi-line business are engaged simultaneously,"

§ 227(b)(1)(D). See

generally Facebook, Inc. v. Duguid,

(2021) (discussing purpose

of TCPA).

Here, the district court held that Subway's actions did not violate the

TCPA because the system used by Subway to send the text message (1) is not an

ATSD as defined by the TCPA and (2) does not use an artificial or prerecorded

voice.

-8- II. Automated Dialing Systems

The first issue turns on the definition of an ATSD. Soliman argues

that the definition includes a system that autodials numbers randomly drawn

from a pre-existing list of telephone numbers. In other words, she argues that the

definition encompasses a dialing system that does not generate the telephone

numbers itself, but instead uses telephone numbers drawn from, for example, a

list of telephone numbers submitted by consumers signing up for a program or

benefit. She contends that the phrase in the statutory definition -- "using a

random or sequential number generator" -- refers not to generating a telephone

number but to generating any number used to store or produce telephone

numbers in the SMS blaster's programming code.

In contrast, Subway argues that the definition encompasses only

systems that generate telephone numbers, and that systems utilizing pre-existing

lists of telephone numbers are not covered. The district court concluded, based

both on rules of statutory interpretation and the Supreme Court's decision in

Duguid,

, that the system employed by Subway was not an

automatic telephone dialing system covered by the TPCA because it did not

generate telephone numbers.

-9- The courts that have addressed the issue have reached conflicting

results. Three circuits -- the only circuit courts to consider the issue -- have held

that the TCPA covers only ATSDs that generate telephone numbers, that is,

systems that do not rely on pre-existing lists of telephone numbers. See Borden v.

eFinancial, LLC,

, 1231 (9th Cir. 2022) (holding that ATSDs "must

generate and dial random or sequential telephone numbers under the TCPA's

plain text" in a case involving an autodialer that selected telephone numbers

from a pre-existing list of numbers); Panzarella v. Navient Sols., Inc.,

(3d Cir. 2022) (holding section 227(b)(1)(A)(iii) not violated where

autodialing system called telephone numbers from "specific, curated borrower

lists," that were not "randomly or sequentially produce[d] or store[d]"); Beal v.

Outfield Brew House, LLC,

(8th Cir. 2022) (holding that "an

automated marketing system that sends promotional text messages to phone

numbers randomly selected from a database of customers' information" is not an

ATSD within meaning of TCPA).

Other courts -- district courts only and one concurring judge on the

Ninth Circuit -- have reached a different conclusion. See, e.g., Scherrer v. FPT

Operating Co., No. 19-cv-03703-SKC,

, at *3 (D. Colo. July 20,

- 10 - 2023) ("this Court finds an autodialer that stores a list of telephone numbers

using a random or sequential number generator to determine the dialing order is

an ATSD under the TCPA"); Libby v. Nat'l Republican Senatorial Comm.,

(W.D. Tex. 2021) (holding that complaint stated a claim under

TCPA where system used a random or sequential number generator to select

telephone numbers from a stored list); see also Brickman v. United States,

, 691 (9th Cir. 2022) (VanDyke. J., concurring) (concurring based on circuit

precedent but concluding that "it does not follow that a 'random or sequential

number generator' in the TCPA's autodialer definition must be limited to a tool

that produces only telephone numbers").

We conclude, based on principles of statutory interpretation and the

Supreme Court's decision in Facebook, Inc. v. Duguid, that the TCPA does not

apply here.

A. Statutory Interpretation

When interpreting a statutory provision, we begin with the words of

the statute. See, e.g., Zepeda-Lopez v. Garland,

(2d Cir. 2022)

(citing Nwozuzu v. Holder,

(2d Cir. 2013)); Saks v. Franklin Covey

Co.,

(2d Cir. 2003) ("Every exercise in statutory construction

- 11 - must begin with the words of the text."). If the words of a statute are clear, we

are to construe the statute according to the plain meaning of its words. See Lamie

v. U.S. Tr.,

(2004) ("It is well established that 'when the statute's

language is plain, the sole function of the courts -- at least where the disposition

required by the text is not absurd -- is to enforce it according to its terms.'"

(quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,

(2000))); Rubin v. United States,

(1981).

If, however, the terms are ambiguous or unclear, we may consider

legislative history and other tools of statutory construction. Greenery Rehab. Grp.,

Inc. v. Hammon,

, 231 (2d Cir. 1998). "The text's plain meaning can

best be understood by looking to the statutory scheme as a whole and placing the

particular provision within the context of that statute." Saks,

; see

also Kar Onn Lee v. Holder,

(2d Cir. 2012) ("[W]e consider not

only the bare meaning of the critical word or phrase but also its placement and

purpose in the statutory scheme.") (quoting Holloway v. United States,

(1999)).

Here, we consider first the words of the statute and second the

context in which the words appear.

- 12 - 1. The Words

The TCPA provides that an "automatic telephone dialing system . . .

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."

(a)(1). The words are no model of clarity, but we conclude that the

better reading of the words is that an "automatic telephone dialing system" is one

that generates telephone numbers. See Borden, 53 F.4th at 1231; Panzarella,

.

There are three references to the word "number" (in the singular or

plural) in section 227(a)(1). The first -- "telephone numbers to be called" --

unquestionably refers to telephone numbers. So too does the third, which states

that an ATDS can "dial such numbers. " One "dials" a phone number, not a

coding or index number. And the "such" in "dial such numbers" is a

straightforward reference to the "telephone numbers to be called. " It would not

make sense for the word "number" in this context to mean anything other than

telephone numbers.

The remaining reference -- to a "number generator" -- is less clear,

but it would be incongruous for "numbers" to refer to telephone numbers in the

- 13 - first and third mention in the statute, but not the second. See Pulsifer v. United

States,

(2024) ("In a given statute, the same term usually has the

same meaning and different terms usually have different meanings.").

Accordingly, we conclude that the better reading of the word "number" in the

phrase "number generator" is that it refers to generating the telephone numbers

to be called and dialed.

2. The Context

We consider also the context in which the words appear, in two

respects: first, the use of the word "number" in other parts of the TCPA; and,

second, the broader context of the purpose of the TCPA.

a. The Word "Number"

When engaging in statutory interpretation, courts are to consider the

statutory scheme as a whole, and "[a] provision that may seem ambiguous in

isolation is often clarified by the remainder of the statutory scheme -- because the

same terminology is used elsewhere in a context that makes its meaning clear."

United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

(1988); see also FDA v. Brown & Williamson Tobacco Corp.,

(2000)

("It is a 'fundamental canon of statutory construction that the words of a statute

- 14 - must be read in their context and with a view to their place in the overall

statutory scheme.'" (quoting Davis v. Mich. Dep't of Treasury,

(1989))).

An examination of other references in the TCPA to the word

"number" supports the interpretation that "number" in the definition of an ATDS

refers to "telephone number" and not to a coding or indexing number See Borden,

53 F.4th at 1233 ("[T]he TCPA uses both 'telephone number' and 'number'

interchangeably throughout the statute to mean telephone number, suggesting

that in the definition section all uses of 'number' mean telephone number."). In

the Do-Not-Call-Database section, for example, the TCPA bars solicitations

directed "to the telephone number of any subscriber included in such database."

(c)(3)(F). The TCPA then provides that regulations shall "prohibit

the use of such database for any purpose other than compliance with the

requirements of this section and any such State law and specify methods for

protection of the privacy rights of persons whose numbers are included in such

database."

§ 227(c)(3)(K) (emphasis added). Here, "numbers" clearly refers to

"telephone numbers," not an index of numbers.

- 15 - Similarly, in the discussion of "[c]aller identification service," the

TCPA provides:

The term "caller identification service" means any service or device designed to provide the user of the service or device with the telephone number of, or other information regarding the origination of, a call made using a voice service or a text message sent using a text messaging service. Such term includes automatic number identification services.

(e)(8)(B) (emphasis added). The reference to "number" here is also

to a telephone number, not an index number that dictates the order in which

telephone numbers are called. Again, the use of the word "number" here the

interpretation that "number" in "random or sequential number generator" must

refer to "telephone number."

There are, of course, references to the word "number" elsewhere in

the TCPA where the context makes clear that the reference is to quantity and not

telephone number (or index or coding numbers). For example, "number" is used

in expressions such as "number of complaints" (section 227(b)(2)(G)(i)(I),

(h)(2)(A)), "number of citations" (section 227(h)(2)(B)), "number of notices"

(section 227(h)(2)(C)) "number of final orders" (section 227(h)(2)(D)), and "number

of calls" (section 227(h)(2)(F), (G)). While it is true that courts ordinarily presume

that "identical words used in different parts of the same act are intended to have

- 16 - the same meaning," Util. Air Regul. Grp. v. EPA,

, 319 (2014), the

presumption of consistent usage "'readily yields' to context, and a statutory

term . . . 'may take on distinct characters from association with distinct statutory

objects calling for different implementation strategies.'"

at 320 (quoting Env't

Def. v. Duke Energy Corp.,

(2007)). With the exception of these

obvious references to "number" as "quantity," "number" in the TCPA refers to

"telephone number," and not to coding or indexing numbers created by a random

number generator.

b. The Purpose of the Statute

A consideration of the broader context of the TCPA must also

include consideration of its purpose: to protect against automatic systems that,

by generating telephone numbers automatically, could tie up the telephone lines

of public emergency services and businesses with sequentially numbered

telephone lines, or otherwise result in tying up a called party's line. See Duguid,

, 405 (citing H.R. Rep. No. 102-317, at 24 (1991)). These concerns

are not implicated by a system that uses a pre-existing list of telephone numbers

that are not automatically or randomly generated, but that are drawn from other

sources, including, as here, from consumers themselves who voluntarily

- 17 - provided them. See Borden, 53 F.4th at 1234-35 ("Using a random or sequential

number generator to select from a pool of customer-provided phone numbers

would not cause the harms contemplated by Congress. Public emergency

services (such as police or fire departments) would presumably not be in these

customer-provided lists. And if an autodialer called the phone numbers on its

customer list sequentially, it would likely not reach the sequential numbers often

assigned to a single business . . . ."). As the Supreme Court observed,

"[e]xpanding the definition of an autodialer to encompass any equipment that

merely stores and dials telephone numbers would take a chainsaw to these

nuanced problems when Congress meant to use a scalpel." Id. at 405.

3. Soliman's Additional Arguments

Soliman makes three additional arguments that warrant discussion.

First, Soliman argues that if the TCPA were read to bar only the

automatic dialing of randomly generated telephone numbers -- leaving

companies free to call people on pre-exisiting lists -- then "Do Not Call" lists

would be rendered meaningless because one cannot consent to a call that is

randomly generated. [Blue at 34-37] We disagree that such an interpretation

would render Do Not Call lists meaningless. When this legislation was drafted

- 18 - in 1991, contemplating the establishment of "a single national database to

compile a list of telephone numbers of residential subscribers who object to

receiving telephone solicitations," Congress envisioned creating the capacity to

prevent autodialers from calling telephone numbers in the database.

(c)(3). The TCPA provides that the regulations governing the database will

"specify the methods by which such objections shall be collected and added to

the database" and "prohibit any person from making or transmitting a telephone

solicitation to the telephone number of any subscriber included in such

database."

§ 227(c)(3)(D), (F). There is nothing in the language of the TCPA to

suggest that randomly generated telephone numbers -- to the extent they appear

on a Do Not Call list -- will not be protected.

Second, Soliman argues that FCC regulations support her position.

Specifically, she points to the discussion of "predictive dialers" in a 2003 FCC

order. See In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of

1991, 18 FCC Rcd. 14014, 14091 (2003) ("2003 FCC Order"). In it, the FCC defined

predictive dialers as equipment that "has the capacity to store or produce

numbers and dial those numbers at random, in sequential order, or from a

database of numbers." Id. The FCC found that predictive dialers "fall[] within

- 19 - the meaning and statutory definition of 'automatic telephone dialing equipment'

and the intent of Congress," even though they use numbers from a database.

2003 FCC Order at 14093.

The D.C. Circuit has addressed the issues raised by the FCC

regulations in its decision in ACA International, 885 F.3d at 699. As the court

explained,

A basic question raised by the statutory definition is whether a device must itself have the ability to generate random or sequential telephone numbers to be dialed. Or is it enough if the device can call from a database of telephone numbers generated elsewhere?

Id. at 701. The court recognized that the Commission's ruling was less than clear.

Id. ("The Commission's ruling appears to be of two minds on the issue."). After

analyzing the Commission's reasoning supporting both positions, the court held

that "the Commission's ruling, in describing the functions a device must perform

to qualify as an autodialer, fails to satisfy the requirement of reasoned

decisionmaking." Id. at 703. 3 We agree that the FCC orders shed little light on

3 In ACA International, regulated entities sought review of a 2015 FCC Order discussing"which sorts of automated dialing equipment are subject to the TCPA's restrictions on unconsented calls." Id. at 691. The court held that because ordinary smartphones could qualify as automatic telephone dialing systems under the 2015 FCC Order, they could thus be subject to the restrictions and penalties of the TCPA. Id. at 692. The court concluded that this was too broad an interpretation of the TCPA and therefore set aside part of the 2015 FCC Order. Id. - 20 - the issue before us, and thus we give them little weight in our analysis. See id. at

703 ("The order's lack of clarity about which functions qualify a device as an

autodialer compounds the unreasonableness of the Commission's expansive

understanding of when a device has the 'capacity' to perform the necessary

functions.").

Third, Soliman argues that "number generator" is a term of art in the

industry, and must be given its technical meaning. Appellant's Reply Br. at 10-

11. A "number generator," she says, is a programming tool used to generate

random or sequential series of numbers, but not necessarily telephone numbers.

Id. Soliman's reading, however, is contrary to the ordinary meaning of the text.

See Duguid,

. That ordinary meaning, considered in light of the

Supreme Court's holding in Duguid, which we turn to next, supports our

conclusion that the provision requires an autodialer to generate telephone

numbers to be covered by the TCPA.

B. Facebook v. Duguid

The district court also held that the Supreme Court's decision in

Duguid does not support Soliman's position. Soliman,

, at *2-3.

We agree. In Duguid, the Supreme Court considered "whether an autodialer

- 21 - must have the capacity to generate random or sequential phone numbers."

Duguid,

(emphasis added). Its discussion supports the

conclusion that "random or sequential" numbers must refer to telephone

numbers. See, e.g.,

("This case concerns 'automatic telephone dialing

systems' (hereinafter autodialers), which revolutionized telemarketing by

allowing companies to dial random or sequential blocks of telephone numbers

automatically." (emphasis added)).

The Court noted that Congress passed the TCPA to combat

annoying telemarketing calls to consumers and businesses, particularly systems

that could dial random or sequential blocks of telephone numbers automatically

and tie up telephone lines of public emergency services and all the lines of

businesses with sequentially numbered phone lines.

. Clearly, the

"autodialer" the Supreme Court envisioned the TCPA covering is one that can

generate random or sequential telephone numbers, not a system that calls

random or sequential phone numbers from pre-existing lists of telephone

numbers generated in other ways.

The Supreme Court in Duguid also addressed whether the definition

of an automatic telephone dialing system "encompasses equipment that can

- 22 - 'store' and dial telephone numbers, even if the device does not 'us[e] a random or

sequential number generator.'"

. The Court held that 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 [number] generator or to

produce a telephone number using a random or sequential number generator."

(emphases added). Thus, "produce" means creating the telephone number in the

first place. See Beal,

(holding that a system that "does not generate

phone numbers to be called . . . does not 'produce telephone numbers to be

called' for purposes of § 227(a)(1) of the TCPA").

Accordingly, the district court here correctly held that, based on this

analysis, Duguid does not support the interpretation that an automatic telephone

dialing system includes a system that does not randomly or sequentially

generate telephone numbers but simply dials telephone numbers from pre-

existing lists. Soliman,

, at *2-3.

Soliman understandably relies on footnote 7 of Duguid, which

appears at first glance to support her position. See

n.7. There, the

Supreme Court discussed a system that sounds similar to the one used by

Subway, namely, one that randomly selects telephone numbers from a pre-

- 23 - existing list of numbers. This footnote was part of a discussion addressing

Duguid's argument that the Court should use a construction that "accords with

the 'sense' of the text."

. Duguid insisted that the most sensible

construction of the TCPA applied the phrase "'using a random or sequential

number generator' to modify only 'produce,'" not "store," as definitions of

"generator" often include the word "produce," but not "store."

Duguid also

argued that the "technical meaning of a 'random number generator' invoked

ways of producing numbers, not means of storing them."

The Court reasoned that this approach might be more compelling if

"applying the traditional tools of interpretation led to a linguistically impossible

or contextually implausible outcome."

(quotation marks omitted).

But it was linguistically possible to "store" numbers using a random number

"generator" and, in fact, patents had been issued for "devices that used a random

number generator to store numbers to be called later (as opposed to using a

number generator for immediate dialing)."

. The Court then inserted

this footnote:

Duguid argues that such a device would necessarily "produce" numbers using the same generator technology, meaning "store or" in § 227(a)(1)(A) is superfluous. "It is no superfluity," however, for Congress to include both functions in the autodialer definition so as

- 24 - to clarify the domain of prohibited devices. BFP v. Resolution Trust Corporation,

,

,

(1994). For instance, 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. See Brief for Professional Association for Customer Engagement et al. as Amici Curiae 19. In any event, even if the storing and producing functions often merge, Congress may have "employed a belt and suspenders approach" in writing the statute. Atlantic Richfield Co. v. Christian, 590 U. S. ––––, ––––, n.5,

,

(2020).

at 407 n.7. This footnote, however, merely notes that one could employ an

autodialer to both "store" and "produce" telephone numbers, as two separate

functions. It says nothing about whether the numbers on the preproduced list

were randomly generated in the first place. And it does not mean that if the

telephone numbers were not originally created by a random number generator,

then the use of a random number generator to pick the pre-existing number is

sufficient to meet the definition of an ATDS. 4 See Borden, 53 F.4th at 1235 ("Using

a random or sequential number generator to select from a pool of customer-

provided phone numbers would not cause the harms contemplated by Congress.

4 Even if Footnote 7 did suggest that such a device meets the definition of an ATDS, that result would be in serious tension with Duguid's text. A stray example in a footnote must yield to the opinion's main text; doubly so when Footnote 7 itself conceded that Congress "may have employed a belt and suspenders approach in writing the statute." Duguid,

n.7 (internal quotation marks omitted). - 25 - . . . The [Duguid] Court's discussion of these risks would make no sense if the

autodialer definition were not tailored to equipment capable of sequential or

random generation of telephone numbers."); accord Beal,

("Like

other courts, we do not believe the Court's footnote indicates it believed systems

that randomly select from non-random phone numbers are Autodialers."). 5

When read in the context of the entire opinion, footnote 7 does not support

Soliman's position. Thus, this argument is unavailing.

III. "Artificial or Prerecorded Voice"

Soliman argues that Subway's text message violated the provision of

the TCPA that makes it unlawful for "any person . . . to make any call . . . using

. . . an artificial or prerecorded voice."

(b)(1)(A). The district court

correctly held that a text message is not a "voice." 6

Once again, we first consider whether the meaning of the statute is

clear from its text. In doing so, we consider the ordinary meaning of the words

5 But see Scherre v. FPT Operating Co.,

, at *3 (collecting cases discussing footnote 7 and holding that an ATDS is not limited to a "telephone-number generator"). 6 While Soliman has waived her argument that automated text messages use a prerecorded voice, she still argues that they use an "artificial voice." Appellant's Br. at 14 n.11. - 26 - at issue at the time the statute was drafted. See Perrin v. United States,

(1979).

Common sense tells us that "voice" -- especially in the context of a

statute regulating telephones -- will ordinarily refer to a sound produced by a

human being. This tracks the dictionary definition of "voice" when the TCPA

was enacted in 1991 is "sound produced by vertebrates by means of lungs, larynx

or syrinx, and various buccal structures." Voice (def. 1a) , Webster's Third New

International Dictionary (1993); accord Voice (def. 1a), American Heritage

Dictionary (1991) ("sound produced by the vocal organs of a vertebrate, esp. by

those of a human being"); Voice (1a), Webster's II New Riverside University

Dictionary (1994) (same). While it is true that "voice" can be defined broadly to

include more than the human voice (like a metaphoric voice), that is not the

ordinary meaning of "voice." See Trim v. Reward Zone USA LLC,

(9th Cir. 2023) ("The ordinary meaning of 'voice' when the TCPA was

enacted . . . was a '[s]ound formed in or emitted from the human larynx in

speaking.'"(quoting Voice (def. 1a), Oxford English Dictionary (2d ed. 1989))).

Just because a definition is "broad enough to encompass one sense of a word

- 27 - does not establish that the word is ordinarily understood in that sense."

Taniguchi v. Kan Pac. Saipan, Ltd.,

(2012).

The language of the TCPA itself also makes clear Congress meant

"voice" to mean something audible, not a text message. As the district court

noted, the TCPA defines "caller identification information" as information

"regarding the telephone number of, or other information regarding the

origination of, a call made using a voice service or a text message sent using a text

messaging service."

(e)(8)(A) (emphasis added). Clearly,

Congress considered a "voice service" and a "text messaging service" to be

distinct categories.

The use of the word "voice" in other parts of the TCPA further

supports the interpretation that a text message is not an artificial voice. For

example, section 227(d)(3) discusses "[t]echnical and procedural standards,"

including "[a]rtificial or prerecorded voice systems." The section provides:

[t]he Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that . . . (B) any such system will automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls.

- 28 -

(d)(3) (emphases added). This is clearly referring to a telephone

call, not a text message, as one cannot hang up on a text. Accord Trim,

.

Accordingly, the district court did not err in holding that a text is not

an "artificial voice." Accord Trim,

("We hold that Congress clearly

intended 'voice' in

(b)(1)(A) to encompass only audible sounds,

because the ordinary meaning of voice and the statutory context of the TCPA

establish that voice refers to an audible sound.").

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

- 29 - Nardacci, District Judge, concurring in part and dissenting in part:

I agree with the majority that a text message without an audio component

does not constitute an “artificial or prerecorded voice” under the Telephone

Consumer Protection Act (“TCPA”),

(b)(1)(A). However, I

respectfully dissent with respect to the majority’s opinion that defendant-

appellee’s short message script ("SMS") technology does not constitute an

automatic telephone dialing system (“ATDS” or “autodialer”) under the

principles of statutory interpretation and the Supreme Court’s decision in

Facebook, Inc. v. Duguid,

(2021). There are five reasons for my

different interpretation.

First, although I agree with the majority that the interpretation of a statute

must begin with the text of the statute, I disagree with their interpretation of the

plain language of this statute. 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.”

(a)(1). The majority reads the word “telephone” into the phrase

“random or sequential number generator” where it does not exist in the text to

find that it means “random or sequential telephone number generator.” The

majority reasons that this is the correct interpretation because the phrases “telephone numbers to be called” and “such numbers” are also included in the

definition. The majority’s reading of the statutory language overlooks the fact

that the clause “random or sequential number generator” is logically distinct

from “telephone numbers,” as indicated by the use of a comma in the definition.

Additionally, “random or sequential number generator” has a well-recognized

technical meaning which is not limited to producing telephone numbers. See

Van Buren v. United States,

(2021) (technical terms in a statute

should be interpreted based on their technical meaning). As Judge VanDyke

explained in his concurring opinion in Brickman v. United States,

(9th

Cir. 2022), “‘random or sequential number generator’ has a known meaning as a

computational tool” that “can produce anything from single digit numbers to zip

codes to telephone numbers.”

(VanDyke, J., concurring); see also

(“[A] random (or sequential) number generator is a term of art referring to

a particular type of computation tool that can be used to generate all types of

different numbers, from telephone numbers to zip codes to a sequence of

consecutively ordered numbers.”); Brief of the Electronic Privacy Information

Center (“EPIC”) et al. as Amici Curiae in Support of Plaintiff-Appellant and

Reversal at 5–8.

2 Second, the majority’s reading of “random or sequential number

generator” is implausible because it renders the word “store” as used in the

definition, “to store or produce telephone numbers to be called,” superfluous.

See Brickman, 56 F.4th at 692 (VanDyke, J., concurring) (noting that “redefining an

autodialer as equipment that can ‘store . . . telephone numbers to be called,

[which are produced] using a random or sequential [telephone] number

generator’ . . . renders ‘store’ superfluous [in

(a)(1)(A)] since the

definition already covers telephone numbers that are ‘produced . . . using a

random or sequential number generator’”).

Third, the majority’s reading of an ATDS as “equipment . . . using a

random or sequential telephone number generator,” would render the prior

express consent exception in the TCPA,

(b)(1)(A), superfluous.

“Prior express consent” requires a caller to obtain permission before using an

autodialer to call a telephone number. See In re Rules & Reguls. Implementing

the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 (1992). The “prior

express consent” exception envisions that a “random or sequential number

generator” is used to select numbers to be dialed from a list of telephone

numbers of consenting parties. If Congress intended to prohibit as an ATDS

3 only equipment that generates telephone numbers, then equipment that dials

telephone numbers from a stored or pre-existing list of telephone numbers

would not be an ATDS and there would be no need for the prior express consent

exception. See Brief of EPIC as Amici Curiae at 11–13.

Fourth, the holding from Duguid supports the conclusion that a “random

or sequential number generator” can include use with a stored or pre-existing list

of telephone numbers. The Duguid Court held that to qualify as an ATDS, a

device must have the capacity to either “store” or “produce” telephone numbers

“using a random or sequential number generator.” See

. The

Supreme Court confirmed that “using a random or sequential number

generator” modifies both words.

. However, the Duguid Court did

not consider what it means for a “random or sequential number generator” to

store or produce telephone numbers.

; see also Eggleston v. Reward

Zone USA LLC, No. 2:20-CV-01027-SVW-KS,

, at *3 (C.D. Cal. Jan.

28, 2022) (“Duguid establishes that an [ATDS] must ‘use a random or sequential

number generator to either store or produce phone numbers,’ but it did not

specify what it means to ‘store or produce’ the phone numbers.”).

Footnote 7 of Duguid supports reading a “random or sequential number

4 generator” to include equipment that can dial telephone numbers from a stored

or pre-existing list of numbers. In footnote 7, the Supreme Court referenced the

possibility that “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.”

n.7.

I agree with those district courts that have read this footnote to support the

conclusion that an ATDS includes equipment that stores and dials telephone

numbers from a pre-existing list, and that an ATDS is not limited to equipment

that generates telephone numbers. See, e.g., Scherrer v. FPT Operating Co., No. 19-

cv-03703 (SKC),

, at *3 (D. Colo. July 20, 2023) (collecting cases

discussing footnote 7 of Duguid and finding that “an ATDS is not limited to a

telephone-number generator”); see also United States v. Bell,

(2d

Cir. 1975) (Supreme Court dicta “must be given considerable weight”).

Finally, interpreting “random or sequential number generator” according

to the plain language of the statute and its technical meaning is consistent with

the purposes of the TCPA. Duguid explained that Congress was concerned with

the harmful effects of autodialers, including harm to individual consumers. See

(“Autodialers could reach cell phones, pagers, and unlisted

5 numbers, inconveniencing consumers and imposing unwanted fees.”).

Although it had a particular concern with preventing the telephone lines of

public emergency services and businesses from being tied up, more generally

Congress sought to prohibit the use of autodialers because unwanted telephone

calls can be both inconvenient and costly to consumers. Moreover, prohibiting

the use of the SMS technology at issue in this case does not create the same

concerns as prohibiting common dialing devices, such as cell phones or the

autotrigger dialing system used by Facebook in Duguid, which “merely store[d]

and dial[ed] telephone numbers.”

; see Scherrer,

,

at *5 (noting that “the Supreme Court’s concern about whether modern cell

phones would be included in the definition of an ATDS is understandable” in the

context of the Duguid plaintiff’s argument that equipment that can store and dial

telephone numbers even if it does not use a “random or sequential number

generator” can qualify as an ATDS).

For these reasons, I respectfully dissent from Part II of the Majority

Opinion.

6