Federal appeals court nixes lawsuit over state House Democratic leader’s robocalls

A Montgomery County lawyer who’s made a career out of suing telemarketers has been dealt a loss in a case seeking damages from Pennsylvania House Majority Leader Matt Bradford over pre-recorded calls to his constituents.

Bradford’s robocalls to people in his district are not covered by the Telephone Consumer Protection Act (TCPA), the 3rd U.S. Circuit Court of Appeals said in an opinion Monday. That’s because the calls are a legitimate function of a state legislator’s office, to benefit the public.

In a unanimous decision, Circuit Judges L. Felipe Restrepo, Anthony J. Scirica and Tamika R. Montgomery-Reeves noted the United States’ constitutional structure was designed to prevent the federal government from overreaching into states’ affairs.

“We are thus hesitant to assume Congress would go so far as to hinder state legislators from communicating with their constituents,” the opinion by Scirica says. He noted the judges’ doubt was heightened by the fact the messages were vetted by state House staff and found to have “a clear legislative purpose and [serve the] public benefit.”

The calls from Bradford’s office concerned an information session about state government health insurance, government resources available during the COVID-19 pandemic, notification of government employment opportunities, a document shredding event for constituents, and a family fair at a local zoo, according to the opinion.

“Such communications related to the health, safety and general welfare of the people clearly serve the ‘public good’ — as opposed to any personal affairs or a re-election campaign,” the opinion said.

Andrew Perrong, the Glenside attorney who filed the suit, said he disagrees with the decision and is considering his options to seek reconsideration. Bradford had appealed a federal district court judge’s decision in Perrong’s favor that robocalls from lawmakers are prohibited except when they pertain to an emergency.

A recent law school graduate, Perrong, 28, said he has been suing telemarketers and scammers since 2015, before he had any formal legal education. Dubbed a “robocall warrior” in a 2018 Philadelphia Inquirer profile, Perrong’s law practice website touts class-action settlements totaling more than $9 million.

Bradford’s lawyer, Karl Myers, said they’re pleased with the decision because it will help ensure constituents are able to find out about services they may find beneficial.

“It is consistent with what we understood from the start: that the TCPA was meant to stop harassing and fraudulent commercial robocalls, not calls from state legislators offering programs for the public’s benefit,” Myers said in a statement.

The Republican and Democratic caucuses of the House and Senate filed amicus briefs in support of Bradford’s arguments that public officials are not included in the meaning of “person” under the law.

TCPA, first passed by Congress in 1991, gives the Federal Communications Commission authority to regulate the use of telephones, fax machines and text messaging to protect consumers from harassing, intrusive, illegal, and unwanted communications.

The law includes a private remedy for consumers, allowing them to collect damages of $500 per violation and triple damages of $1,500 for willful and knowing violations, according to the opinion.

Bradford’s calls, which were pre-recorded and made using an autodialer, were typical of those used by lawmakers to contact constituents using resources provided for operations and expenses in their districts.

In order to place such calls, a representative or senator’s office must make a request to their caucus’ communications office, where the message is reviewed to ensure it has a legislative purpose. If the communications office determines it does not, the request is rejected, the opinion says.

Scirica’s opinion notes that House rules bar lawmakers from using mass communications within 60 days of an election, although a temporary rule made an exception for messages related to the COVID-19 pandemic.

Perrong said he’s driven to fight robocalls because of the harassment and disruption they cause in daily life. As a student at La Salle College High School, Perrong said marketing calls were so frequent they interrupted his studies.

His lawsuits target telemarketing companies and large corporations that conduct their own telemarketing, but he also sued the Montgomery County Democratic Committee. That suit was also unsuccessful as a result of a technical difference in the way the committee’s calls were placed.

Citing data compiled by the privacy app Youmail, Perrong noted consumers receive billions of robocalls each month.

“It’s a problem that’s not going away and in fact, is getting worse,” he said.

While he acknowledged there’s a difference between spam calls and the constituent services calls lawmakers use, Perrong said he’s focused on what he described as the “pervasive harm” of pre-recorded calls.

“The medium is what Congress designed the TCPA to protect,” he said.