Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—3rd Cir.: State legislators not covered by TCPA’s robocall ban, (Oct 7, 2025)

By Elizabeth C. Pope, J.D.

In a case of first impression, the Third Circuit ruled that robocalls from state legislators that relate to their official duties do not fall within the scope of the Telephone Consumer Protection Act.

In a case of first impression, the Third Circuit determined that the general ban on “persons” making robocalls in the Telephone Consumer Protection Act (TCPA) does not encompass calls made by state legislators when exercising the legitimate functions of their office for the public benefit. The appellate court therefore reversed the federal trial court’s denial of the state legislator’s motion for summary judgment. Having ruled in favor of the state legislator on the statutory issue, the Third Circuit declined to rule on his Eleventh Amendment sovereign immunity claim (Perrong v. Bradford, No. 24-1925 (3rd Cir. Oct. 6, 2025)).

Matthew Bradford, a Pennsylvania State Representative, used robocalls as part of his official communication process. The scripts for the calls were approved by his legislative caucus’s communications office as having “a clear legislative purpose and public benefit.” Calls concerned such topics as an information session regarding state government health insurance, government resources available during the COVID-19 pandemic, and an upcoming shredding event for constituents.

Appellate jurisdiction. The Third Circuit first determined it had jurisdiction under the collateral order doctrine to hear Bradford’s appeal of a denial of his motion for summary judgment, which is normally viewed as a non-final or interlocutory order that cannot generally be appealed.

“Person” under TCPA. In what it described as a “narrow ruling” in a case of first impression, the Third Circuit found for the state legislator, concluding that the use of the general term “person” in the TCPA’s robocall restriction does not encompass calls made by state legislators when exercising the legitimate functions of their office for the public benefit. The court began by noting that while there exists a longstanding interpretive presumption that use of the term “person” in a statute does not include the sovereign, that presumption may be disregarded upon an affirmative showing of statutory intent to the contrary. In addition, the rule of exclusion of the sovereign is less stringently applied where the operation of the law is upon the agents or servants of the government rather than on the sovereign itself.

Even so, the court found nothing to support the contention that Congress intended to disregard the general exclusion of the sovereign, or its agents, when enacting the ban on robocalls made by “any person.” It first noted that the TCPA’s general definition of a “person” fails to include the government in its definitional list. More broadly, the court observed that under the country’s Constitutional design, the States retain a significant measure of sovereign authority. Given these points, the court declined to assume that Congress would enact legislation that hindered state legislators from communicating with their constituents by simply using the general “any person” ban found in the Act, especially when Pennsylvania’s legislative staff had determined the communications at issue to have a clear legislative purpose. Any Congressional intent to enact a ban altering “the usual constitutional balance between States and the Federal Government” should be “unmistakably clear in the language of the statute.”

Eleventh Amendment. Having determined that the TCPA does not provide a cause of action against Bradford for the robocalls, the court declined to rule as to whether the Eleventh Amendment also bars the claims.

The Case is No. 24-1925.

Judge: Scirica, A.

Attorneys: Andrew R. Perrong (Perrong Law LLC) for Andrew R. Perrong. Karl S. Myers (Stevens & Lee PC) for Matthew Bradford.

Cases: ConsumerProtection DelawareNews NewJerseyNews PennsylvaniaNews