Perrong v. Bradford
| Docket Number | 2:23-cv-00510-JDW |
| Decision Date | 18 September 2023 |
| Parties | ANDREW R. PERRONG, Plaintiff, v. MATTHEW BRADFORD, et al., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
The best way to know what Congress intended when it passed a statute is to look at the text of the law. The Telephone Consumer Protection Act is no exception. That law seeks to limit robocalls and telemarketing calls to phone numbers on a do-not-call registry. The language of that statute contains three restrictions that matter in this case. First it bars calls that use a prerecorded message to certain types of phone numbers, including those that pay a fee for receiving calls. Andrew Perrong has such a phone number and alleges that he received a prerecorded call, so he can pursue that claim. Second, the TCPA bars calls that an automatic telephone dialing system (“ATDS”) places. An ATDS, in turn, is one that randomly or sequentially generates and stores or processes telephone numbers. That didn't happen in this case, so Mr. Perrong cannot pursue a claim about the use of an ATDS. Third, and finally, it prohibits telemarketing calls and solicitations. The calls about which Mr. Perrong complains do not qualify, so he can't maintain claims asserting that they were.
Between September 2019 and December 2020, Mr. Perrong received five phone calls from the same caller. Mr. Perrong either did not answer or only heard dead air on the first four calls. When Mr. Perrong answered the fifth call, he heard a recording of Pennsylvania House of Representatives member, Matthew Bradford. The recording stated:
To make those calls, Rep. Bradford recorded a message and transmitted that call, along with a list of proposed phone number recipients, to the Democratic Communications Office of the Pennsylvania House of Representatives. The Communications Office then transmits the message and the list of phone numbers to Cleo Communications, LLC, which loads the information into its systems and places the calls.
Mr. Perrong filed this case on February 8, 2023. On April 28, 2023, I granted in part and denied in part a motion to dismiss. Mr. Perrong filed an Amended Complaint on June 15, 2023, to add Cleo as a defendant. The Amended Complaint asserts three claims, all for violations of the TCPA: (a) one for violating the 47 U.S.C. § 227(b) by using a pre-recorded message (Count I); (b) one for violating Section 227(b) by using an ATDS; and (c) one for violating Section 227(c) and its implementing regulations. Cleo moved to dismiss the Amended Complaint, and that motion is ripe for decision.
A district court may dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Rather than require detailed pleadings, the “Rules demand only a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (quotation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (same). In determining whether a claim is plausible, the court must “draw on its judicial experience and common sense.” Id. at 786-87 (same). First, the court must identify the elements needed to set forth a particular claim. See id. at 787. Second, the court should identify conclusory allegations, such as legal conclusions, that are not entitled to the presumption of truth. See id. Third, with respect to well-pleaded factual allegations, the court should accept those allegations as true and “determine whether they plausibly give rise to an entitlement to relief.” Id. (quotation omitted). The court must “construe those truths in the light most favorable to the plaintiff, and then draw all reasonable inferences from them.” Id. at 790 (citation omitted).
Section 227(b)(1)(A)(iii) prohibits making “any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to . any service for which the called party is charged for the call[.]” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Mr. Perrong asserts claims based both on the use of a prerecorded voice (Count I) and the use of an ATDS (Count II).
Section 227(b)(1)(A)(iii) applies to calls that use an ATDS or an artificial or prerecorded voice. The statute's use of the word “or” demonstrates that it is disjunctive, meaning that a plaintiff need only satisfy one of those criteria to state a claim. See Pellegrino v. United States of America Transportation Security Admin., Div. of Dept. of Homeland Sec., 937 F.3d 164, 178 (3d Cir. 2019). According to the Amended Complaint, Cleo placed five calls to Mr. Perrong's residential line on behalf of Rep. Bradford and played a prerecorded voice message on one of those calls. Mr. Perrong's residential line is assigned to a VoIP service that charges a ring charge of $0.08, regardless of if the call is answered, and $0.009 per minute of talk time, including voicemail time. Finally, Mr. Perrong alleges that his telephone number is on the National and Pennsylvania Do Not Call Registries and that he did not consent to Rep. Bradford's calls. These allegations satisfy all the statutory elements of a prerecorded voice claim.
Cleo doesn't make any argument about Mr. Perrong's prerecorded voice claim in its opening brief. For that reason alone, I could deny its motion with respect to Count I. In its reply (when it's not supposed to be making new arguments), Cleo argues that Section 227(b)(1)(A)(iii) requires the use of an ATDS, but that's at odds with the statutory language. Cleo's argument ignores the statute's use of the word “or.” The statute, on its face, does not require the use of an ATDS.
Cleo also argues that Mr. Perrong's phone line does not fall within the scope of Section 227(b)(1)(A)(iii) because it is not a portable phone. Once more, it doesn't raise that argument until its reply brief, so I can disregard it. And again, Cleo's argument doesn't grapple with the statute's text. The statute applies to any telephone number assigned to “any service for which the called party is charged for the call[.]” 47 U.S.C. § 227(b)(1)(A)(iii). Mr. Perrong alleges that his telephone number is assigned to a “VoIP telephone service” and that he is “charged for each call it receives.” (ECF No. 19 at ¶ 32.) That satisfies the statute.
As defined by the TCPA, an “automatic telephone dialing system” is a piece of equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. 47 U.S.C. §227(a)(1). In Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), the Supreme Court held that “[t]o qualify as an ‘automatic telephone dialing system,' a device must have the capacity either [(a)] to store a telephone number using a random or sequential generator or [(b)] to produce a telephone number using a random or sequential number generator.” Id. at 1167. Following that decision, the Third Circuit held that for a call to violate the TCPA's prohibition on the use of ATDS, the call must employ the system's capacity to use a random or sequential number generator to produce or store telephone numbers. See Panzarella v. Navient Sols., Inc., 37 F.4th 867, 881 (3d Cir. 2022). It is not enough that the system could use a random or sequential number generator to produce or store telephone numbers; it must actually do so. See id.
The Amended Complaint alleges that “once Defendant Bradford records a prerecorded robocall, that recording is transmitted, along with a proposed list of numbers, to the Democratic Communications Office of the House of Representatives and then to Cleo, who handles the necessary steps to load it into its systems and ultimately places the calls.” (ECF No. 19 at ¶ 23.) The Amended Complaint further states that Cleo's system “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.” (Id. at ¶ 59.)
The question before me turns on the phrase “random or sequential number generator” in the TCPA. If the term refers to the generation of telephone numbers, then Cleo did not use a ATDS because it called the numbers on the list that Rep. Bradford provided. On the other hand, if the term applies to the generation of numbers that determine the order in which a machine calls the supplied telephone numbers (e.g., which phone number is number 1, which is number 2, etc.), then Cleo might be using an ATDS. Neither the Supreme Court nor the Third Circuit has answered that question, so I'm left to construe the statute.
Congress did not define the term “number” in...
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