3rd Circuit Affirms Dismissal of TCPA Case vs. Pa. County Democratic Committee

A 3rd U.S. Circuit Appeals Court panel of Judges Michael Chagares, David Porter and Anthony Scirica affirmed the district court's July 18 decision dismissing Andrew Perrong’s Telephone Consumer Protection Act case against the Democratic Committee of Montgomery County, Pennsylvania, for failure to state a claim (see 2308090033), said Chagares’ opinion Wednesday (docket 23-2415).

The U.S. District Court for Eastern Pennsylvania in Philadelphia granted the committee’s motion to dismiss on the ground that it didn’t call plaintiff-appellant Perrong using an automatic telephone dialing system (ATDS) as defined by the statute, and as he had alleged, and the 3rd Circuit agrees, said the opinion. Perrong didn’t contend that the committee placed the calls to him by using a device to generate phone numbers randomly or sequentially from scratch, it said. He alleges only that the committee used a number generator to determine the order in which to call phone numbers from a previously compiled voters list, it said.

Perrong argues that while the committee didn’t use a number generator to create phone numbers from scratch, it nonetheless used an ATDS because its device employed a number generator to determine the order in which to call a list of phone numbers, said the opinion. The district court rejected this argument, explaining that his “expansive definition” of an ATDS was “inconsistent” with the 3rd Circuit’s 2022 decision in Panzarella v. Navient Solutions, it said. In Panzarella, the 3rd Circuit held that a loan servicer didn’t violate the TCPA because there was no evidence that its device used a random or sequential number generator to "produce or store" phone numbers, it said.

The district court’s analysis was correct, said the opinion. The committee’s calls were “list-mode” calls in which its device dialed phone numbers from a customer list, as opposed to “automatic-mode” calls, where the device dials random or sequentially generated phone numbers, it said. List-mode calls, according to Panzarella, fall outside the scope of the TCPA’s prohibitions, it said.

Perrong fails to explain how the committee’s method of calling risks dialing up emergency lines or tying up sequentially numbered business lines, said the opinion. This lawsuit is a case in point, it said. He received a targeted phone call, addressing him by name, that urged him to vote for a political party in his county’s general elections. Thus, the committee didn’t use an ATDS to call him, it said.

Perrong claims that a footnote in the U.S. Supreme Court’s 2021 decision in Facebook v. Duguid supports his position, but “we disagree,” said the opinion. In Duguid, the Supreme Court held that the phrase, “using a random or sequential number generator,” modifies both the words, “store” and “produce,” it said. Under that modification, to qualify as an ATDS, a device must have the capacity either to store a phone number using a random or sequential generator or to produce a phone number using a random or sequential number generator, it said.

The gist of Perrong’s argument is that in the Duguid footnote, the Supreme Court endorsed the proposition that a device using a number generator to select and dial phone numbers from a previously compiled list is also an ATDS, said the opinion. “But we did not adopt this reading of Duguid in our subsequent decision in Panzarella,” it said. Other appeals courts “have rejected this precise argument on the ground that it takes the footnote completely out of context,” it said: “We concur with their persuasive reasoning and reject Perrong’s interpretation of Duguid.”