Did this Fresh Subway TCPA Litigation Decision Refresh a New Type of Claim? - Klein Moynihan Turco LLP

Did this Fresh Subway TCPA Litigation Decision Refresh a New Type of Claim?

As telemarketing litigation under the Telephone Consumer Protection Act (“TCPA”) continues to evolve (and, in some ways, narrow), more plaintiffs are relying on theories of liability that stretch the meaning of the law. Consider one of the latest arguments: sending unsolicited text messages violates the TCPA’s prohibition on sending messages containing prerecorded voices. One plaintiff brought such a claim in a recent Subway TCPA litigation. The problem with the case, however, is that equating a purely textual SMS message with a prerecorded voice call is not an apt comparison. One Connecticut federal court recently agreed, dismissing a “text message as prerecorded voice” claim in a case captioned Soliman v. Subway Franchisee Advertising Fund, Ltd.

 How does the Subway TCPA litigation affect text message claims?

Marina Soliman received a text message from Subway offering her a free bag of chips. She replied with a request to opt-out of future text message advertising. When she received a subsequent message, she sued Subway for violating the TCPA. Her claims centered on the argument that Subway’s text message violated the TCPA’s restrictions on placing calls using a prerecorded voice. According to Soliman, Subway’s text message was pre-written and thus qualified as “prerecorded.” Subway disagreed and moved to dismiss. 

The Court sided with Subway. Step one for interpreting any statute is look to the plain language of the law itself. And the Court did not need to go beyond the first step to rule in Subway’s favor. “Voice” means verbal communication and does not include a text message with no audio component. Making a call with a prerecorded voice requires verbal communication. More than that, “recording” means to convert sound into a permanent form. Text messages have no sound to convert and, thus, cannot be recorded. Therefore, as the Court put it, “the [TCPA] has only one plausible meaning: text messages without an audio component are not prerecorded voices.”  

Why does the Soliman case matter to your business?

After the U.S. Supreme Court’s opinion in Facebook v. Duguid, TCPA autodialer-specific claims fell drastically in number. To fight against that door closing, plaintiffs have had to push the boundaries of statutory interpretation. One result has been the misguided argument that text messages are prerecorded voices. You do not have to be a lawyer to see the abject failure in that logic. In addition, the TCPA has a standalone provision restricting certain text message practices. So the idea that the prerecorded voice restriction applies to text messages is even less credible. 

Businesses need to be ready for these “creative” arguments if and when they end up in TCPA disputes for sending text messages. Of course, the Soliman decision is only one ruling from one court. Other courts could see the issue differently. Either way, your business’s goal should be to prevent these claims altogether by implementing industry-best TCPA compliance policies. The attorneys at Klein Moynihan Turco have decades of experience in all things telemarketing law. We can help your business stay TCPA compliant and defend you against any unforeseen TCPA claims. 

If you need assistance with updating your telemarketing policies and procedures or defending a TCPA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900. 

The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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