Perrong v. Brief Call Inc.

Background

Andrew R. Perrong, proceeding without a lawyer, brought claims under the Telephone Consumer Protection Act (TCPA), its implementing regulations, and the Pennsylvania Telemarketer Registration Act. The defendants were Brief Call, Inc.; the New York Veteran Police Association; and Louis Telano. The claims concerned three calls Perrong received in April 2022.

The complaint alleged that Brief Call called two Voice over Internet Protocol numbers assigned to Perrong. The service charged the recipient for each incoming call. The numbers were listed on the Pennsylvania and national do-not-call registries, and Perrong alleged that he had not consented to or requested the calls. One call was unanswered, while two calls delivered identical prerecorded messages soliciting donations for the Veteran Police Association. Perrong also alleged that he asked to be placed on the defendants’ internal do-not-call list and requested a copy of their written do-not-call policy, but received nothing.

The complaint asserted four counts against Brief Call: (1) using an artificial or prerecorded voice in violation of the TCPA; (2) using an automatic telephone dialing system in violation of the TCPA; (3) violating the Pennsylvania Telemarketer Registration Act by making calls without registering as a telemarketer; and (4) violating TCPA regulations concerning the national do-not-call registry, written do-not-call policies, and maintaining consumers on internal do-not-call lists. The opinion states that the Veteran Police Association had defaulted and that Telano had not been served; this order addressed Brief Call’s motion.

Motion and Report and Recommendation

Brief Call moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Magistrate Judge Netburn recommended denying the motion. Brief Call objected, arguing that Perrong’s request for information after answering one call showed consent, that Perrong should not receive the usual flexibility given to people representing themselves, that the complaint did not adequately allege an automatic telephone dialing system, and that the nonprofit exemptions protected Brief Call.

Court’s Analysis

The court accepted the complaint’s factual allegations as true for purposes of the motion and drew reasonable inferences in Perrong’s favor. It rejected Brief Call’s argument that Perrong’s request for mailed documentation showed consent to future calls. The court concluded that asking for information about the charity did not establish consent to receive additional telephone calls, particularly because the complaint expressly alleged that Perrong had not consented to or requested the calls.

The court also overruled Brief Call’s objection concerning the standard for people representing themselves. Brief Call had not raised that issue before Magistrate Judge Netburn, and the district court stated that the objection merely repeated arguments made in the original motion. The court further stated that the magistrate judge had included the general standard for self-represented litigants in the legal-background section but had not relied on that standard in the substantive analysis. The court said the motion failed even without that additional flexibility.

For Counts One and Two, the court found that the complaint plausibly alleged that Brief Call used a prerecorded voice and an automatic telephone dialing system to call numbers for which Perrong was charged. The court denied the motion as to Count One because the complaint alleged calls using an artificial or prerecorded voice and charges for the calls. It denied the motion as to Count Two because the complaint alleged facts supporting an inference that the calls were made through an automatic dialing system that called numbers randomly or sequentially. Those facts included the lack of a prior relationship, repeated calls within a week, identical prerecorded messages, allegations that an automatic system was used, and allegations that calls were made randomly or sequentially.

The court rejected Brief Call’s argument that the complaint’s allegation that the defendants physically programmed the dialer defeated the automatic-dialing claim. Reading the complaint as a whole, the court understood that allegation to mean the system had been programmed to make random or sequential calls, some of which reached Perrong.

For Count Four, the court upheld the recommendation to deny dismissal. At the pleading stage, the court considered the complaint’s allegation that the Veteran Police Association was a “sham charity” and would not accept Brief Call’s assertion that the organization qualified for a nonprofit exemption. The court also explained that the regulatory exemption from certain do-not-call-list requirements applied to tax-exempt nonprofit organizations themselves, not necessarily to entities acting on their behalf. Because the complaint did not allege that Brief Call itself was a tax-exempt nonprofit organization, the court found no basis at this stage to apply that exemption to Brief Call.

Finally, the court denied dismissal of Count Three, the Pennsylvania Telemarketer Registration Act claim. Because the federal claims remained in the case, the court agreed that it could exercise supplemental jurisdiction over the state-law claim, which arose from the same calls and related facts.

Disposition

Judge Gardephe overruled Brief Call’s objections, adopted Magistrate Judge Netburn’s Report and Recommendation in its entirety, and denied Brief Call’s motion to dismiss. The order did not resolve whether Perrong would ultimately prevail on any claim; it ruled only that the complaint could proceed past the pleading stage against Brief Call.