In a case analyzing whether invitations to town hall meetings regarding COVID-19 were exempted from liability by the TCPA’s emergency purposes exception, the Tenth Circuit declined to address whether a municipality is a “person” under the TCPA.
The case, Silver v. City of Albuquerque, — F. 4th —, 2025 WL 1173558 (10th Cir. 2025) arose from plaintiff Gerald Silver’s filing of a putative class action lawsuit alleging that the City violated the TCPA by utilizing pre-recorded phone calls to invite residents to virtual town halls regarding COVID-19. The City moved to dismiss on two grounds: first, that it was not a “person” as defined by the TCPA, and second, that its calls would be exempted from the TCPA based on its exception for calls made for emergency purposes. The District Court granted the motion on the exception argument without reaching the question of whether a municipality is a “person.” In its opinion affirming the District Court’s decision, the Tenth Circuit did the same.
The Tenth Circuit’s analysis began by laying out a two-step inquiry required to determine whether a call falls within the TCPA’s emergency exception. The inquiry considers both context and content of the call. As applicable in Silver, the context prong of the exception was met because the caller was a local government official, the mayor, acting on behalf of the City. The content prong, which requires that “the content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak,” involved a more in-depth analysis.
The parties did not dispute the noncommercial nature of the calls; rather, they disputed whether the calls were informational and necessary. Plaintiff argued that because the town halls would necessarily be virtual, the calls were not necessary. He also argued that the calls were not relevant to him as he had expressed no interest or desire in attending the town halls. The Tenth Circuit acknowledged that Silver was entitled to inferences in his favor at the motion to dismiss stage but nonetheless found that “common sense” meant the calls were proper mitigation measures. Separately, it found that the emergency purposes exception to the TCPA does not require that the calls be “tailored to an individual’s preferences” as opposed to related to a “bona fide emergency that is relevant to the called party” — here, the COVID-19 pandemic.
Finally, Silver argued that the calls did not explicitly mention COVID-19, that there were less intrusive means available of informing citizens about the town halls, and that the town halls themselves did not always concern COVID-19. The Tenth Circuit handily dismissed these arguments, finding that the emergency creating the necessity of the calls was COVID-19 itself. Thus, the fact that the calls were made as a response to the pandemic was alone sufficient to find that the calls fit under the TCPA’s emergency purposes exception.
For now, local governments and municipalities in the Tenth Circuit must continue to wait for guidance on their status under the TCPA. Although Silver provides an excellent roadmap for parties looking to make arguments under the emergency purposes exception, given its fact-intensive and context-specific nature, should be careful not to expand it in an overbroad manner.
