In Perrong v. Bradford et al, the plaintiff alleged that the defendant, an elected official, violated the Telephone Consumer Protection Act (TCPA) by calling his residential phone using a prerecorded message and an automatic telephone dialing system (ATDS). He further alleged that his telephone number was registered with both the national and Pennsylvania Do Not Call registries.

As alleged in the complaint, between September 2019 and December 2020, the plaintiff received five calls from the same number. The plaintiff did not answer or only heard dead air for the first four calls, but on the fifth call he allegedly heard a prerecorded political message. The plaintiff’s amended complaint alleged three counts for claimed violations of the TCPA: (1) violating 47 U.S.C. § 227(b) by using a prerecorded message; (2) violating 47 U.S.C. § 227(b) by using an ATDS; and (3) violating 47 U.S.C. § 227(c) by placing a telemarketing call. The defendant moved to dismiss the amended complaint in its entirety.

Section 227(b) prohibits making “any call … using any automatic telephone dialing system or an artificial or prerecorded voice … for which the party is charged for the call.” The amended complaint alleged that the defendant’s fifth call played a prerecorded message. Further, the plaintiff’s residential line was assigned to a service that charged a ring charge of $.08 per call regardless of whether the call was answered. The court found the allegations satisfied the required elements of the statute.

The plaintiff next alleged that the defendant used a communications service to place the calls. According to the plaintiff, the defendant sent a proposed list of numbers to the communications service. The communications system as alleged by the plaintiff “operates automatically in a sequential manner using CSV files, which are rudimentary Excel spreadsheets, and only permits users to customize such lists by adding single contacts to an existing list.” Unsurprisingly, the court’s analysis began with a summary of Facebook, Inc. v. Duguid, which held that “[t]o 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.” The plaintiff argued that the defendant’s communication system randomly or sequentially called the numbers from the defendant’s list. After analyzing the statutory text as well as Third Circuit precedent, the court concluded that a system only qualifies as an ATDS if it generates the telephone numbers dialed rather than simply choosing numbers to call off an imported list. On that basis, the court granted the defendant’s motion to dismiss the claim.

The court also granted dismissal of the plaintiff’s third claim that the call at issue constituted telemarketing, finding that an informational call about a forum providing information about shopping for health insurance did not constitute telemarketing as defined in the applicable regulations.

Our Take:

There is an argument that the message at issue should have been immune from the TCPA’s reach by virtue of the Federal Communication Commission’s finding that official state messages are not subject to the statute. It seems, however, that the defendant’s counsel failed to raise this defense.

Nonetheless, this case adds another arrow in defense counsel’s quiver of case law narrowly interpreting the definition of an ATDS in light of Duguid.