Another Day, Another ATDS Suit Dismissed in E.D. Pa.

Plaintiff Andrew Perrong is no stranger to the Eastern District of Pennsylvania, and on September 18, 2023, yet another of Perrong’s suits was partially dismissed on ATDS grounds.  Perrong v. Bradford, et al., No. 2:23-cv-00510, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023).  You can read our prior coverage of Perrong decisions here and here.

In this instance, Perrong filed a TCPA action against Pennsylvania House of Representatives member Matthew Bradford; he later filed an Amended Complaint adding Cleo Communications, LLC, which placed the calls on behalf of Representative Bradford.  Perrong alleged that in 2019 and 2020, he received five phone calls, four of which were not answered or were answered to dead air.  A fifth phone call included a recording of Representative Bradford, inviting Perrong to participate in a virtual information session on opportunities to connect Pennsylvanians to healthcare coverage.  Perrong asserted three TCPA claims against Representative Bradford and Cleo Communications: the placing of a prerecorded message, use of an ATDS, and the placing of a telemarketing call.

The Court sustained Perrong’s claim against Cleo for its use of a prerecorded message, but dismissed the two remaining claims regarding use of an ATDS or telemarketing.

In dismissing the ATDS claim, the Court thoughtfully considered whether calls placed in a randomized order to predetermined phone numbers would constitute an ATDS, and ultimately held that it would not.  It noted that while the term “number” is not defined in the TCPA, the broader context of the statute and the ordinary meaning of the word “number” lead to the conclusion that all three uses of the word “number” in the TCPA refer to “telephone numbers.”  Id. at *3.  Consistent with this interpretation, where the statute refers to a “random or sequential number generator,” this then refers to the generation of telephone numbers, not to the order in which calls are placed.  This interpretation is consistent with the Third Circuit’s approach in Panzarella v. Navient Sols., Inc., 37 F.4th 867 (3d Cir. 2022), where the court held that only calls placed using an “automatic” mode (which dialed randomly or automatically generated phone numbers) would violate the TCPA.

The Court also dismissed Perrong’s claim that the telephone call from Representative Bradford was a “telephone solicitation” or placed for “telemarketing purposes.”  In its analysis, the Court looked to the dictionary definition of the word “encourage,” and concluded that Representative Bradford’s informational message did not constitute telemarketing.  As Judge Wolson explained, “there’s a difference between telling people about how to search for something and telling them what to choose.”  Id. at *4.

This decision represents yet another instance where a call placed to predetermined numbers, but in a randomly or sequentially generated order, fails to violate the TCPA’s prohibition against ATDS use.  Judge Wolson’s observation of the difference between informational calls and telemarketing calls may also limit the applicability of TCPA liability where calls placed purely for informational purposes are at issue.

William A. Wright

About the Author: William A. Wright

William Wright represents clients in connection with complex business disputes, consumer class actions and emerging e-discovery and information governance issues. His experience includes a broad range of representative matters, including contract disputes, statutory class actions and corporate governance investigations. Bill defends large institutional clients in commercial litigation and routinely manages subject matter experts and consultants. He has appeared in numerous state and federal courts, and before private arbitration panels.

Kerry M. Gibbons

About the Author: Kerry M. Gibbons

Kerry Gibbons counsels clients in litigation and dispute resolution.

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