Perrong v. Montgomery County Democratic Committee, et al., No. 22-cv-4475 (E.D. Pa. July 18, 2023)

Plaintiff sued Defendants, claiming that they violated the Telephone Consumer Protection Act’s prohibition of making certain calls using an automatic telephone dialing system (“ATDS”). The only disputed issue was “how the definition of an ATDS applies to a device that does not generate phone numbers from scratch but instead uses a stored list of numbers and ‘randomly’ or ‘sequentially’ dials all the numbers on that list.”

Concluding Defendant did not violate the TCPA, the Court cited the Third Circuit case Panzarella v. Navient Sols., Inc. wherein the Court of Appeals “contrasted “dial[ing] . . . telephone numbers imported from . . . [a] list’ with ‘dial[ing] random or sequential telephone numbers’ and stated that only the latter would amount to a prohibited use of an ATDS.” While noting that the Court of Appeals’ statement was dicta, the Court believed that it did provide an indication that the Third Circuit does not view calling numbers on a list as generating those numbers randomly or sequentially.

Absent binding precedent, the Court also looked to the TCPA itself, concluding that the definition of an ATDS requires use of a random or sequential number “generator.” The word “generate” means to “bring into existence.” “[S]electing numbers from a list is not ‘generating’ those numbers.” Given the above, and the Ninth Circuit decision in Borden v. eFinancial that calling a list of phone numbers on a previously compiled list randomly or sequentially does not violate the TCPA provided that the numbers on the list were not themselves generated randomly or sequentially, the Court granted Defendant’s Motion to Dismiss. In doing so, the Court also addressed, and rejected Plaintiff’s argument that footnote 7 in the United States Supreme Court Facebook decision means that “using a random or sequential number generator to select phone numbers from a stored list violates the TCPA,” noting that “list-based calling was not at issue in Facebook. (Footnote 7 states “Duguid argues that such a device would necessarily ‘produce’ numbers using the same generator technology, meaning ‘store or’ in § 227(a)(1)(A) is superfluous. ‘It is no superfluity,’ however, for Congress to include both functions in the autodialer definition so as to clarify the domain of prohibited devices. For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time. In any event, even if the storing and producing functions often merge, Congress may have ‘employed a belt and suspenders approach’ in writing the statute”).

The Dismissal was without leave to amend because any such amendment would be futile. A copy of the opinion can be accessed by clicking here.

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