A recent decision from the U.S. Court of Appeals for the Third Circuit in Perrong v. Bradford has gained attention from the business and policy community. The case was filed by Andrew R. Perrong a TCPA plaintiff’s lawyer who, according to one court order, is “a habitual litigant with extensive familiarity with the TCPA” that has engaged in “gamesmanship of the lowest order,” Perrong v. DVD II Group, No. 23-361, 2023 WL 3229934 (E.D. Pa. May 3, 2023.). Perrong has pursued this case in his own name, rather than on behalf of a client, as he has done in dozens of other cases filed in the United States District Court for the Eastern District of Pennsylvania.
The Bradford decision reverses a lower court decision holding that Perrong could pursue claims against Pennsylvania Rep. Matthew Bradford over automated, pre-recorded calls made to his cell phone about topics like government resources during the COVID-19 pandemic, employment opportunities, and a constituent document shredding event. In reversing, the Third Circuit found that the Telephone Consumer Protection Act’s (TCPA) robocalling restriction does not apply to calls made by state legislators when they are exercising the “legitimate functions of their office for the public benefit”. The court was “hesitant to impose liability on state legislators when they act” for the public good because communication on issues is considered a regular part of their official business.
Third Circuit’s Analysis
The Third Circuit addressed a “question of first impression: whether the Telephone Consumer Protection Act (‘TCPA’) prohibition on robocalls restricts state legislators from making automated and pre-recorded calls in connection to their legitimate government functions”.
The court’s primary holding rested on its interpretation of the word “person” in the TCPA statute, which prohibits “any person” from making calls using an automatic telephone dialing system or artificial or prerecorded voice to a mobile phone without consent. 47 U.S.C. 227(b)1)(A)(iii). The opinion relied on the “longstanding interpretive presumption that ‘person’ does not include the sovereign”. The court determined that applying the TCPA’s restrictions to a state legislator’s official communications would “alter the usual constitutional balance between States and the Federal Government”. To impose such a restriction, Congress must make its “intention to do so unmistakably clear in the language of the statute”. The court held that the general term “any person” in the TCPA “does not suffice” to meet this high bar, especially when the communications relate to legitimate legislative functions rather than personal or campaign matters.
The Third Circuit characterized Representative Bradford’s calls—which informed constituents about state health insurance, government services during the COVID-19 pandemic, and public events—as serving the “public good” rather than “private indulgence”. The court explicitly defined the limited nature of its decision, stating, “Our holding today is a narrow one: § 227(b)(1)’s robocall restriction, by using the general term ‘person,’ does not encompass calls made by state legislators when exercising legitimate functions of their office for the public benefit”. The court also noted it was not opining on how the term “person” might apply to other government officials. Because the court resolved the case on this statutory question, it did not rule on the separate defenses of Eleventh Amendment immunity or qualified immunity.
The Effect: Unequal Rules for Those Who Make Them?
The TCPA was designed to protect consumers from unwanted and intrusive communications. Yet, this ruling effectively creates an exemption for legislators. That’s not only a legal nuance, it raises a fairness question because it protects those who write the rules from ever experiencing the impact that vague language and uncapped statutory damages can have on legitimate businesses and the chilling effect it can have on speech protected by the First Amendment.
As EIA President & CEO David Carter recently noted during testimony before the Michigan Senate Finance, Insurance, and Consumer Protection Committee regarding the flaws of a proposed mini-TCPA, SB 351:
data from carriers like AT&T shows that political text messaging is, by an overwhelming margin, the number one source of customer texting complaints. The numbers are staggering. Political messages make up only about 7% of messaging traffic, yet they are responsible for an astonishing 60% of all customer complaints. This isn’t a partisan issue; it’s a consumer issue. Polling shows that 90% of Democrats and 85% of Republicans believe political campaigns should be required to get consent before sending texts.
The Perrong v. Bradford decision may be legally narrow, but its message is broad. It signals that lawmakers are not currently accountable under the federal TCPA. As such state lawmakers who truly want to address the concerns of their constituents about unwanted calls and text messages will need to do some soul searching about whether there should be two different standards under state law or whether state laws should fill this gap created by the Third Circuit’s analysis. If the burdens and litigation risks of the TCPA and similar state laws are not too much for small businesses to bear, is it fair for constituents to expect those seeking and holding public office to be held to those same standards?
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