A Pennsylvania federal court has ruled that a lawmaker can be held personally liable under the Telephone Consumer Protection Act (TCPA) for prerecorded robocalls that were intended as government communications to constituents.
Andrew Perrong received five prerecorded robocalls from Rep. Matthew Bradford about government services available in the community, such as a document shredding day and a family fair at the zoo.
The calls were paid for by the Democratic Party and approved by the House Communications Office as having “a clear legislative purpose and public benefit.”
Perrong sued for violations of the TCPA’s prerecorded voice provisions and Bradford moved for summary judgment, arguing that the TCPA did not apply to him as a state legislator because the at-issue communications were sent in connection with his position as a state legislator.
The court disagreed, denying the motion and allowing Perrong to proceed with his claims against Bradford in his personal capacity.
Although Bradford contended that the conduct at issue in the lawsuit was connected to his professional position, the court said it “does not follow that every time a public official acts under color of state law, the suit must of necessity be one against the official in his or her official capacity.”
Instead, U.S. District Court Judge Joshua D. Wolson determined who was the real party in interest—the sovereign or the individual.
“Mr. Perrong did not name Rep. Bradford as a defendant due to his official position; he did so because of Rep. Bradford’s personal actions in directing the challenged phone calls,” he wrote. “The fact that Rep. Bradford may have been acting within the scope of his role as a state legislator when he made the calls does not make this an official capacity suit.”
At the same time, there was no indication that the Commonwealth of Pennsylvania or the Pennsylvania House of Representatives was the real party in interest, Judge Wolson said.
Bradford did not suggest that a state law or regulation required him to make the challenged calls or that he made the calls on behalf of the Commonwealth, and any adverse judgment against Bradford would not bind the Commonwealth.
“The fact that individual state representatives might read this decision and stop using prerecorded calls to reach their constituents is not the same as requiring the Commonwealth to change its own operations or procedures,” the court wrote. “And, of course, state legislators can still make robocalls to their constituents, as long as they ensure that the calls only go to those who have opted to receive them.”
Concluding that Perrong could pursue his claims against Bradford in his personal capacity, the court queried if legislative and/or qualified immunity might apply. Government officials may assert qualified immunity when defending against TCPA claims, Judge Wolson found, if Rep. Bradford could show “that reasonable officials could not have known that their actions violated clearly established law.”
The Court ruled that qualified immunity did not shield Rep. Bradford from liability in the case at hand. The facts showed that Bradford violated a statutory right, as Perrong received calls that violated the TCPA, and the right was clearly established under Section 227(b)(1)(A)(iii): “A public official does not get the benefit of ‘one liability-free violation’ simply because the circumstance of his case is not identical to that of a prior case,” the court said. “The TCPA applies to ‘individuals,’ of which Rep. Bradford is obviously one. Although the [Federal Communications Commission] has concluded that the TCPA does not apply to a state government, an individual legislator is not the government, nor does he act for the government when he exercises his discretion and makes individual decisions to publicize events to his constituents.”
Bradford may have made a mistake about the TCPA’s application to him, but it was not because of a lack of legal clarity about the possibility that he could be liable, the court held.
To read the opinion in Perrong v. Bradford, click here.
Why it matters:
The court acknowledged an unpublished decision from the Ninth U.S. Circuit Court of Appeals holding that sovereign immunity applies to personal capacity claims against legislators under the TCPA (2023’s Cheng v. Speier); however, having reviewed the case, the court disagreed and found the dissenting opinion to be more persuasive.