On April 8, 2024, the Third Circuit Court of Appeals issued an opinion clarifying Telephone Consumer Protection Act ("TCPA") Automatic Telephone Dialing System ("ATDS") liability in the wake of the United States Supreme Court's landmark decision in Facebook v. Duguid. As our readers are aware, the TCPA was enacted to restrict certain telemarketing practices, including the use of an ATDS for marketing purposes. In Perrong v. Montgomery Cnty., Plaintiff alleged that Defendants violated the TCPA by using a number generator to determine the order in which to call a list of phone numbers. Citing its decision in Panzarella v. Navient Solutions, Inc., the Third Circuit rejected Plaintiff's TCPA ATDS argument and affirmed the district court's dismissal of the action.
It has been over three years since the Supreme Court decided Facebook. Since then, numerous plaintiffs have resorted to Facebook's Footnote 7 predictive dialer language to file TCPA ATDS lawsuits. The Plaintiff in Perrong was no exception. In ruling against Plaintiff, however, the Third Circuit, like many other circuit courts, declined to interpret Footnote 7 in a manner that would prohibit calling from a stored list of numbers.
How Did Facebook Alter the TCPA ATDS Lawsuit Landscape?
Facebook settled a longstanding circuit split by determining that a necessary feature of a TCPA ATDS is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Prospective TCPA plaintiffs lost significant ground after the Supreme Court decided that "random or sequential number generator" modifies both the "store" and "produce" language contained in the statute. However, opportunistic plaintiffs continue to file TCPA ATDS lawsuits by capitalizing on a single sentence in Footnote 7 of the Facebook decision. This sentence reads: "For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list." Perrong keeps the door closed, at least in the Third Circuit, to such Footnote 7 claims.
How did the Court Decide Perrong?
In Perrong, Plaintiff received telephone calls from Defendants urging him to vote for particular candidates in a general election. Plaintiff alleged that the subject telephone calls were initiated through the use of an ATDS. Defendants filed a motion to dismiss, arguing that their equipment was not an ATDS within the meaning of the TCPA. The district court agreed and dismissed Plaintiff's lawsuit.
On appeal, Plaintiff argued that "although the defendants did not use a number generator to create phone numbers from scratch, they nonetheless used an ATDS because their device employed a number generator to determine the order in which to call a list of phone numbers." The Third Circuit reiterated that the harm contemplated by the TCPA's ATDS prohibitions would not be caused by a system that dialed telephone numbers from a customer list. Specifically, using a generator to dial from a list would not risk "dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity." Furthermore, Plaintiff failed to explain how Defendants' dialing system risked causing any of the harm contemplated by Congress when it enacted the TCPA. Accordingly, the Third Circuit affirmed the district court's dismissal of the action.
Why is the Perrong DecisionImportant?
Facebook was unequivocal in defining an autodialer as dialing equipment that has the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Unfortunately, the Supreme Court's inclusion of Footnote 7, albeit unintended, provided somewhat of a backdoor for TCPA plaintiffs to continue filing claims, while ignoring the rest of the opinion. Appropriately, most federal courts have declined to give credence to a claim based on a single sentence "divorced" from the rest of Facebook. Perrong follows Third Circuit jurisprudence in keeping a potentially major loophole closed for putative TCPA ATDS plaintiffs.
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