E.D. Pa. Dismisses Serial Plaintiff’s TCPA Case on ATDS Grounds

On July 18, 2023, the United States District Court for the Eastern District of Pennsylvania dismissed a TCPA claim filed by serial Plaintiff, Andrew Perrong.  Perrong v. Montgomery Cnty. Democratic Comm., No. 22-4475, 2023 WL 4600423 (E.D. Pa. July 18, 2023). You can read our prior coverage of Perrong decisions here and here.

The present case centers around three phone calls Perrong received from the Montgomery County Democratic Committee and its associates. Perrong claimed that Defendants violated the TCPA by using an ATDS to contact him. The Defendants moved to dismiss the case, arguing that Perrong’s complaint failed to state a claim because the device at issue randomly or sequentially dialed phone numbers from a preexisting list (such as a list of registered voters), rather than randomly producing phone numbers itself, and therefore did not qualify as an automatic telephone dialing system.

Judge Goldberg granted Defendants’ motion to dismiss, finding that Plaintiff had not sufficiently demonstrated that the calls were made using an ATDS as defined by the TCPA. The Court’s decision was based on a close examination of the nature of the calls and how they were made, notably through a service called Twilio, which provides a computerized platform that allows callers to make high volumes of automated calls.

Crucial to the Court’s decision was the distinction between a device that generates numbers “randomly or sequentially” from scratch, versus one that dials numbers from a pre-existing list in a random or sequential manner. The TCPA defines an ATDS as equipment with the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers.

The court was guided by the statutory language and past decisions, including Facebook, Inc. v. Duguid and Panzarella v. Navient Sols., Inc. to decide that a device that dials numbers from a pre-existing list doesn’t qualify as an ATDS unless the numbers on that list were generated randomly or sequentially. The Court emphasized that, under the ordinary meaning of the term “generator,” selecting numbers from a list is different from “generating” those numbers.  The Court also rejected Plaintiff’s argument that footnote 7 in Duguid affirmatively establishes that using a random number generator to select phone numbers from a stored list violates the TCPA.

This case adds to the growing body of law interpreting the scope of the TCPA and the definition of an ATDS in light of Duguid. It underlines the importance of understanding the specifics of the technology and methods used in dialing systems when considering potential TCPA violations. The ruling could also potentially limit the applicability of TCPA liability where companies or organizations use pre-compiled lists of users, as Montgomery County echoes rulings from the Third and the Ninth Circuits finding that calling phone numbers from a pre-existing list would not qualify a device as an ATDS.

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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