TCPA’s “Any Person” Robocall Ban Does Not Reach State Legislators Performing Legitimate Official Functions

Commentary on Andrew R. Perrong v. Matthew Bradford, No. 24-1925 (3d Cir. Oct. 6, 2025)

Introduction

In a precedential decision of first impression, the U.S. Court of Appeals for the Third Circuit held that the Telephone Consumer Protection Act’s (TCPA) robocall prohibition, which applies to “any person,” does not encompass automated and prerecorded calls made by state legislators when those calls are part of their legitimate governmental functions and serve the public benefit. The case arises from five prerecorded calls made on behalf of Pennsylvania House Representative Matthew Bradford, concerning constituent-facing information on health insurance resources, COVID-19 assistance, government job opportunities, a shredding event, and a local family fair.

The plaintiff, Andrew Perrong, a frequent TCPA litigant, sued Bradford seeking statutory damages of up to $1,500 per call, contending the calls were unlawful under 47 U.S.C. § 227(b)(1). The district court denied Bradford’s motion for summary judgment, holding that Bradford qualified as a “person” under the TCPA, that Eleventh Amendment immunity did not bar the action, and that qualified immunity did not apply because the statute’s application was clearly established.

On interlocutory appeal, the Third Circuit exercised jurisdiction under the collateral order doctrine (given the denials of qualified immunity and Eleventh Amendment immunity) and, using pendent appellate jurisdiction, reached the logically antecedent statutory question: does the TCPA’s “any person” language reach state legislators engaged in official communications? The Court answered no, reversing the denial of summary judgment and declining to reach sovereign immunity or qualified immunity.

Summary of the Opinion

• The TCPA’s robocall restriction applies to “any person,” but longstanding interpretive principles create a presumption that “person” does not include the sovereign absent a clear statement. That presumption extends, contextually, to state sovereign functions.
• Context matters: the Communications Act’s definition of “person” omits the government; TCPA sits within that Act; and federalism clear-statement rules counsel against construing general language to intrude on state legislative functions absent unmistakably clear statutory text.
• Communications to constituents about public resources and services are “entirely legitimate” legislative functions; given that context, Congress did not clearly bring such activity within the TCPA’s “any person” prohibition.
• The holding is narrow: it covers calls by state legislators when exercising legitimate official functions for the public benefit. It does not address campaign communications or personal, private activity.
• Because the statute does not reach the conduct, the Court does not decide Eleventh Amendment immunity or qualified immunity.
• The Court does not resolve whether the FCC’s interpretations merit Skidmore deference post–Loper Bright, but notes the FCC’s independent authority to craft categorical exemptions has not been used to exempt government officials explicitly.

Analysis

Precedents and Authorities that Shaped the Decision

• Return Mail, Inc. v. U.S. Postal Service (2019) and Vermont Agency of Natural Resources v. U.S. ex rel. Stevens (2000): The Supreme Court recognizes a “longstanding interpretive presumption” that “person” does not include the sovereign. That presumption can be overcome only by an affirmative showing of contrary intent and is especially weighty where federal-state balance is implicated.
• Communications Act of 1934 definitions: “Person” is defined to include private entities (individuals, partnerships, corporations) but not government, and the definition applies unless “the context otherwise requires.” This omission supports expressio unius reasoning that Congress did not include sovereigns in that term for provisions within the Act, including the TCPA.
• Nardone v. United States (1937): Addressing “no person” language in the Communications Act in a wiretapping context, the Court held context controls whether agents are included; sometimes including government officers would “work obvious absurdity” (e.g., speed limits for police in pursuit). The Third Circuit uses Nardone to illustrate that “person” is not a rigid term and must be read in statutory and constitutional context.
• Will v. Michigan Dept. of State Police (1989) and Hafer v. Melo (1991): Section 1983 cases recognizing that “person” can include officials in their personal capacity, but that a clear statement is required to alter the federal-state balance. These decisions supply the template for applying federalism canons to general statutory language.
• Tenney v. Brandhove (1951) and Bogan v. Scott-Harris (1998): Even where statutes broadly impose liability on “every person,” courts avoid constructions that intrude on core legislative functions, a tradition “well grounded in history and reason.” Tenney specifically held § 1983 does not subject legislators to liability for acts “within the sphere of legislative activity,” reflecting a rule of construction sensitive to legislative independence.
• Murphy v. NCAA (2018), Garcia v. San Antonio MTA (1985), Erie R.R. v. Tompkins (1938): Foundational federalism cases emphasizing state autonomy and warning against federal dictates to state legislatures absent clear constitutional or statutory authorization.
• Barr v. AAPC (2020), Mims v. Arrow Financial Services (2012): TCPA backdrop. Barr noted the robocall restriction applies to “persons,” not the Government; Mims situated TCPA as a response to interstate telemarketing. Barr severed a government-debt exception and observed the statute’s person-based scope.
• Campbell-Ewald Co. v. Gomez (2016): Federal contractors are not cloaked in sovereign immunity for TCPA violations when exceeding validly conferred authority; set the stage for FCC reexamination of government-caller status.
• FCC declaratory rulings: Broadnet I (2016) and Broadnet II (2020). The FCC originally read “person” to exclude federal callers and some contractors; later limited contractor exclusion, but maintained that federal and state government callers acting in official business are not “persons.” The Third Circuit notes the FCC’s views but does not rest its holding on agency deference post-Loper Bright.
• Cunningham v. Lester (4th Cir. 2021): Found the U.S. to be the real party in interest in a contractor-calls case, applying sovereign immunity. Distinguishable because Cunningham involved federal contractors and immunity, not statutory coverage of state legislators.
• Cheng v. Speier (9th Cir. 2023) (unpublished): Gave Chevron deference to FCC’s view that federal legislators are not “persons.” Loper Bright (2024) has since abrogated Chevron; the Third Circuit proceeds on independent statutory and constitutional analysis.
• Jurisdictional authorities: Mitchell v. Forsyth (qualified immunity), Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy (Eleventh Amendment), Broselow v. Fisher (statutory question can be decided before immunity), Swint v. Chambers County (pendent appellate jurisdiction). These support reaching the antecedent statutory-coverage question.

Legal Reasoning

1. Threshold jurisdiction:
   • Denials of qualified immunity and Eleventh Amendment immunity are immediately appealable collateral orders when turning on legal questions.
   • Pendent appellate jurisdiction permits the court to decide the logically antecedent statutory question—does the TCPA cover state legislators’ official constituent communications?—before immunity. If the statute does not apply, immunity questions need not be reached.
2. The sovereign-exclusion canon and Communications Act context:
   • There is a deep presumption that “person” does not include the sovereign (Return Mail; Vermont Agency). The Communications Act’s definitional section omits government from “person,” reinforcing that presumption.
   • Because TCPA is part of the Communications Act, that definitional baseline applies unless context requires otherwise.
3. Federalism clear-statement rule and constitutional avoidance:
   • When an interpretation would alter the usual constitutional balance or intrude into state sovereign functions (here, the operations of a state legislature), Congress must speak with unmistakable clarity. General “any person” language does not suffice.
   • Reading TCPA to restrict state legislative communications about public services would raise serious federalism and separation-of-powers concerns; courts avoid such difficult constitutional questions absent a clear directive from Congress.
4. Legislators, “legitimate functions,” and the Tenney analogy:
   • While “constituent services” are not always immunized as core legislative acts for common-law legislative immunity, they are “entirely legitimate” functions of office (Brewster). The Court leverages Tenney’s instruction not to infer congressional intent to limit legislative freedom through general language.
   • Thus, state legislators’ official communications to inform constituents about public resources, employment opportunities, and community events fall outside the TCPA’s “person”-based robocall ban absent a clear statement.
5. Application to the record:
   • The calls were initiated through House Democratic Caucus processes, scripted and reviewed by the Legislative Communications Office, funded with public monies, and approved as serving a “clear legislative purpose and public benefit.”
   • Topics included health insurance, COVID-19 resources, census job opportunities, an identity-theft mitigation shredding event, and a family fair—subjects tied to the health, safety, and general welfare of constituents, not to campaign activity or private indulgence.
6. Scope and limits:
   • The holding is expressly narrow. It does not immunize campaign calls or calls lacking a legitimate governmental function. Nor does it address other categories of government actors (e.g., executive officials, municipal entities, or contractors).
   • The FCC’s separate authority to craft categorical exemptions remains; the agency has not promulgated an exemption expressly covering “government officials as a class” using its notice-and-comment exemption mechanism.

Impact and Implications

Immediate practical effects

• Within the Third Circuit (Pennsylvania, New Jersey, Delaware, and the Virgin Islands), state legislators making prerecorded or automated calls in furtherance of legitimate official business are not “persons” for purposes of TCPA’s robocall ban. Private plaintiffs cannot obtain TCPA damages or injunctions against such calls.
• Plaintiffs will likely shift strategies to argue that particular calls are not “legitimate functions” or not for the “public benefit,” but rather are campaign-related or personal. This makes the characterization of the call’s purpose a pivotal, fact-bound issue.
• Legislative offices should maintain robust documentation (e.g., scripts, approvals, purpose statements, timing relative to elections) demonstrating that calls serve official purposes and are not tied to electoral advocacy.

Line-drawing questions the opinion leaves open

• What constitutes a “legitimate function” or “public benefit”? The opinion leans on common-sense indicators and the House’s internal processes but does not set a detailed test. Expect future litigation on edge cases (e.g., mixed-purpose communications that mention policy achievements close to an election).
• Campaign or political calls: The opinion strongly signals that campaign-related calls remain within TCPA’s ambit (and outside the protection announced here). Legislative rules that restrict pre-election mass communications underscore the distinction.
• Other government actors: The Third Circuit deliberately declines to opine on executives, agencies, municipalities, or contractors. The logic is strongest for state legislators given the special federalism concerns about dictating legislative operations. Whether courts extend similar reasoning to other state officials will be contested.
• Contractors: The opinion does not address contractor liability when placing calls for legislators. Campbell-Ewald and Cunningham indicate different analyses when contractors are involved, especially if they exceed validly conferred authority or if the sovereign is the real party in interest.

Interaction with federal administrative law

• Chevron deference is no longer available post–Loper Bright. The Third Circuit does not rest its decision on FCC interpretations; instead, it employs traditional tools of statutory construction plus federalism canons. Future challenges will be resolved by judicial interpretation subject only to Skidmore’s persuasive force where appropriate.
• The FCC retains express statutory authority to exempt classes of calls from the TCPA, provided it delineates caller classes, called parties, and numerical limits. The agency has not used that authority to exempt government callers as a class. This decision may reduce pressure for a government-caller exemption within the Third Circuit but could prompt national rulemaking for consistency.

Prospect of further review and inter-circuit dynamics

• While the Ninth Circuit’s unpublished Cheng decision concerned federal legislators and relied on Chevron, and the Fourth Circuit’s Cunningham decision turned on immunity and contractors, the Third Circuit’s ruling creates a clear, precedential, statutory coverage carve-out for state legislators. Other circuits may adopt or reject this approach, potentially setting up a circuit split.
• The Supreme Court has signaled in Barr and related cases that “person” does not include the Government, and has repeatedly emphasized federalism clear-statement rules. Those signals align with the Third Circuit’s analysis, making the reasoning a plausible candidate for broader acceptance.

Complex Concepts Simplified

• Sovereign-exclusion canon: When a statute uses the word “person,” courts presume it does not include the government (federal or state) unless Congress clearly says otherwise. This avoids surprise intrusions into sovereign functions based on general language.
• Clear-statement rule (federalism): If Congress intends to change the balance of power between the federal government and the states—such as by regulating how a state legislature communicates with constituents—it must do so unmistakably in the statute’s text.
• Constitutional avoidance: If one reading of a statute raises serious constitutional problems (e.g., federal interference with state legislative operations) while another plausible reading avoids them, courts generally choose the latter unless Congress clearly dictated the problematic reading.
• Collateral order doctrine: Some decisions that are not final judgments (like denials of immunity) can be appealed immediately because waiting would effectively deny the right at stake.
• Pendent appellate jurisdiction: Once an appellate court has jurisdiction over an interlocutory issue, it can sometimes decide closely related, antecedent questions necessary to resolve the appeal.
• Personal- vs. official-capacity suits: Personal-capacity suits target the individual for damages and are not automatically barred by sovereign immunity. But even a personal-capacity action fails if the statute, properly construed, does not reach the conduct at all—as the Third Circuit held here.
• Skidmore deference: Post–Loper Bright, courts may still give weight to an agency’s interpretation based on its thoroughness and persuasiveness, but there is no binding Chevron deference.

Practical Guidance for Legislators, Counsel, and Litigants

• Purpose documentation: Before initiating mass communications that use prerecorded or automated technology, legislative offices should document the public-serving, non-campaign purpose; keep drafts, approvals, and legal/ethics reviews.
• Content and timing: Avoid electoral advocacy or references that could recharacterize a call as campaign-related, especially within pre-election restricted periods. Compliance with internal house or caucus rules will remain relevant evidence.
• Vendor management: If contractors are used, ensure scopes of work and scripts are limited to legitimate official business and include compliance obligations. Contractor conduct that strays outside the conferred authority may not benefit from the sovereign-exclusion reasoning.
• Plaintiff strategy: Plaintiffs contemplating TCPA suits against state officials in the Third Circuit should carefully assess whether the calls can be plausibly characterized as campaign or personal. Where official purpose is clear and well-documented, the statutory coverage argument is likely dispositive.
• Agency developments: Monitor FCC proceedings. The agency could clarify the status of government callers through exemptions or interpretive guidance, which courts would assess for Skidmore persuasiveness.

Conclusion

The Third Circuit’s decision establishes a new, federalism-sensitive limitation on TCPA’s scope: the statute’s “any person” robocall prohibition does not encompass prerecorded or automated calls by state legislators when those calls are made in the course of legitimate official functions for the public benefit. Rooted in the sovereign-exclusion canon, the Communications Act’s definitional structure, clear-statement rules, and constitutional avoidance, the ruling preserves space for state legislative communications without opening a general safe harbor for political campaigns or personal pursuits.

The opinion is careful and narrow. It avoids pronouncing on Eleventh Amendment or qualified immunity, and leaves open how its reasoning applies to other government actors or contractors. Still, its core message is clear: absent unmistakably clear statutory text, courts will not infer that Congress intended the TCPA to police how state legislators communicate with their constituents about public services and civic resources. Expect future litigation to focus on the line between official, public-serving communications and campaign or private activity—and expect other circuits, and perhaps the Supreme Court, to grapple with the same question soon.

Key Takeaways

• New rule: In the Third Circuit, state legislators are not “persons” under TCPA’s robocall ban when making prerecorded/automated calls as part of legitimate official functions serving the public benefit.
• Narrow holding: No protection for campaign calls or private indulgences; factual characterization will be crucial.
• Doctrinal anchors: Sovereign-exclusion canon, federalism clear-statement rule, Communications Act context, and constitutional avoidance.
• Unresolved issues: Applicability to other state actors, contractors, and borderline communications; potential for inter-circuit divergence.
• Compliance note: Internal governmental approvals and documented public purpose will be potent defenses to TCPA claims post-Bradford.