Andrew Perrong v. Matthew Bradford

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 24-1925

________________

ANDREW R. PERRONG

v.

MATTHEW BRADFORD;

CLEO COMMUNICATIONS

Matthew Bradford,

Appellant

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil No. 2:23-cv-00510

District Judge: Honorable Joshua D. Wolson

______________

ARGUED: May 22, 2025

Before: RESTREPO, MONTGOMERY-REEVES, and

SCIRICA, Circuit Judges.

(Filed: October 6, 2025)

Karl S. Myers

Stevens & Lee

555 City Avenue

Suite 1170

Bala Cynwyd, PA 19004

Counsel for Appellant

Kenneth L. Joel

Office of General Counsel

Commonwealth of Pennsylvania

30 N 3rd Street

Harrisburg, PA 17101

Counsel for Amicus Appellant Governor of

Pennsylvania

Crystal H. Clark

Shannon A. Sollenberger

Senate of Pennsylvania

Main Capitol

Harrisburg, PA 17120

Rodney A. Corey

Pennsylvania House of Representatives

P.O. Box 202228

Suite B-6 Main Capitol

Harrisburg, PA 17120

Counsel for Amicus Appellants Pennsylvania House of

Representatives Republican Caucus, Pennsylvania Senate

Democratic Caucus and Pennsylvania Senate Republican

Caucus

2

Andrew R. Perrong

Perrong Law

1657 The Fairway

No. 131

Jenkintown, PA 19046

Counsel for Appellee

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

This case concerns a question of first impression:

whether the Telephone Consumer Protection Act (“TCPA”)

prohibition on robocalls restricts state legislators from making

automated and pre-recorded calls in connection to their

legitimate government functions.

Matthew Bradford, a Member of the Pennsylvania

House of Representatives, appeals the District Court’s denial

of his summary judgment motion in this TCPA action brought

by Andrew Perrong—a recipient of telephonic mass

communications made on Representative Bradford’s behalf.

Perrong argues Bradford’s telephonic mass communications to

constituents regarding public health resources, employment

opportunities, and upcoming events violate TCPA’s

prohibition on automated phone calls. Bradford, in turn,

argues his communications do not fall within TCPA’s scope

because general language prohibiting conduct by “any person”

does not usually extend to the sovereign. Even if his conduct

3

were encompassed, Bradford further argues Perrong’s action

would be barred by the Eleventh Amendment or by qualified

immunity.

Because we agree that TCPA’s robocalling restriction

does not apply to calls made by state legislators, we will

reverse the District Court’s denial of summary judgment. As

the statute does not encompass the conduct complained of, we

express no opinion on whether the Eleventh Amendment or

qualified immunity bars the suit at issue.

I.

The Commonwealth of Pennsylvania appropriates

funds to the Pennsylvania House of Representatives to provide

for its operations and expenses. See Act 1A of 2024, S.B.

1001, § 262 (July 11, 2024). Pennsylvania House Rules permit

Pennsylvania House Members, like Appellant Matthew

Bradford, to expend allotted funds “for any legislative purpose

or function.” JA 405. The legislative purpose requirement

must be satisfied for a House Member to be reimbursed with

public funds for such expenditures. House Members

commonly use these funds to promote legislative events, which

can include mass communications through pre-recorded and

4

automated calls. 1 These communications are at issue in this

case.

House operations are carried out by employees of the

House Caucuses based on party affiliation—namely, the House

Democratic and Republican Caucuses. As relevant here, since

Bradford is a member of the Democratic Caucus (“the

Caucus”), staffers in the Legislative Communications Office

of the House Democratic Caucus (“Communications Office”)

assist with his mass communications. If a House Member

makes a request for a mass communication on a specific topic,

the Communications Office prepares the scripts and makes

logistical arrangements for the calls in coordination with the

House Member’s staff. After the script is prepared, senior

staffers in the Communications Office review the script to

ensure its content is appropriate. The Communications Office

may also send any questionable call requests to House Legal

and Ethics for compliance review. Calls are approved if the

Communications Office determines that the communications

1

Additionally, House Rules prohibit House Members

from making mass communications within 60 days of a

primary or general election or any other election in

which the Member is a candidate. And a temporary

House Rule also permitted mass communications

“limited to information directing constituents to public

and private resources and services available to mitigate

the impact” of the COVID-19 emergency, even during

the pre-election restricted period. JA 419.

5

further “a clear legislative purpose and public benefit.” JA

322. 2

If the Communications Office determines a call does

not have a legislative purpose, the call request is rejected, and

the call may not be placed using House resources. 3 For

instance, a staffer testified that a former House Member’s

request for a mass communication congratulating the President

on the passing of a federal statute was denied by the

Communications Office for lacking a legislative purpose and

was never placed. Meanwhile, if a call is approved, the Caucus

places the robocalls through a government contractor using

public funds.

Perrong brings this TCPA action against Representative

Bradford for five pre-recorded calls placed using an automated

telephone dialing device. The calls stated they were made by

2

Perrong disputes whether the House Communications’

procedure actually ensures the calls at issue further a

clear legislative purpose. Because the statutory

question at issue does not turn on the standard for

legislative purpose in the Pennsylvania House Rules,

this fact is immaterial to our analysis. We only note that

House Staffers determined, to their satisfaction, that

such calls further “a clear legislative purpose and public

benefit.” JA 322.

3

Perrong agrees calls must further a legislative purpose

to be permissible but notes there is no evidence in the

record that anyone “has [been] disciplined,

reprimanded, or taken similar action against for

engaging in, facilitating, or allowing allegedly unlawful

or unauthorized calls to occur.” JA 254.

6

“State Representative Matt Bradford,” and were approved,

funded, and administered by the Communications Office

through the process described above. JA 283–84. Perrong

alleges these calls violate the statute’s prohibition on calls

made with an “automatic telephone dialing system or an

artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1). The

calls at issue concerned: (1) an upcoming information session

about state government health insurance, (2) government

resources available during the COVID-19 pandemic, (3)

notification of government employment opportunities, (4) an

upcoming shredding event for constituents, and (5) an

upcoming family fair at a local zoo. Perrong seeks money

damages against Bradford of up to $1,500 for each violation as

per 47 U.S.C. § 227(b)(3).

Following discovery, Bradford brought a summary

judgment motion in this action, arguing that TCPA does not

apply to the conduct at issue, the claim was barred by Eleventh

Amendment sovereign immunity, and he individually is

protected under qualified immunity. The District Court, in

relevant part, rejected these claims and denied summary

judgment.

As to the statutory issue, the District Court held

Bradford is a “person” subject to suit under TCPA because,

although the term “person” usually excludes suits against

officers in their official capacity as against the sovereign, the

District Court determined that this is an individual capacity

action against Bradford, making Bradford a “person” for

purposes of statutory interpretation. The District Court noted

the fact “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.” JA 13. And, although

7

Perrong’s Complaint is silent as to the capacity in which

Bradford was sued, the District Court construed plaintiff’s

action as an individual capacity action because: (1) Bradford

was listed as the defendant alongside his personal address in

his Complaint, and (2) Perrong’s relief was only sought against

Bradford, not the state of Pennsylvania.

As to the Eleventh Amendment, the District Court

recognized that sovereign immunity does not usually bar a

claim made against an officer in his or her individual capacity.

And the District Court ruled Pennsylvania is not the real party

in interest in this action because Perrong’s suit does not seek

money damages from Pennsylvania and his requested relief

would not “requir[e] the Commonwealth to change its own

operations and procedures” since Bradford’s decision to place

the calls was a discretionary rather than mandatory one. JA

13–14 (emphasis omitted). Accordingly, the District Court

held Eleventh Amendment immunity does not bar this

individual capacity suit.

As to qualified immunity, the District Court determined

that state legislators like Bradford may assert the defense of

qualified immunity in TCPA actions. But the District Court

ruled that qualified immunity does not bar this suit on the

grounds that TCPA’s text was sufficiently obvious that

Bradford should have known his conduct was encompassed by

the statute’s prohibition. Bradford timely appeals the denial of

summary judgment.

II.

We begin, as we must, with the threshold question of

jurisdiction. The District Court had jurisdiction under 28

8

U.S.C. § 1331. We generally lack jurisdiction under 28 U.S.C.

§ 1291 to review interlocutory orders, such as a denial of

summary judgment. See Bines v. Kulaylat, 215 F.3d 381, 384

(3d Cir. 2000). But the collateral order doctrine permits

appellate review of a narrow category of interlocutory

decisions that: (1) “conclusively determine the disputed

question,” (2) “resolve an important issue completely separate

from the merits of the action,” and (3) are “effectively

unreviewable on appeal from a final judgment.” P.R. Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993) (citation omitted). Denials of immunity commonly fall

into this category. See HIRA Educ. Servs. N. Am. v. Augustine,

991 F.3d 180, 187–88 (3d Cir. 2021).

Here, the District Court ruled that Bradford was not

entitled to qualified immunity due, in part, to the Court’s

holding that TCPA’s robocalling prohibitions to state

legislators are clearly established. And “a district court’s

denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’ within

the meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth, 472

U.S. 511, 530 (1985).

The District Court also denied Bradford’s claim of

Eleventh Amendment immunity by holding the

Commonwealth of Pennsylvania is not the real party in interest

in this suit. And such a denial of Eleventh Amendment

immunity, which turns on a question of law, “is immediately

appealable under the collateral order doctrine, imbuing us with

jurisdiction under 28 U.S.C. § 1291.” Maliandi v. Montclair

State Univ., 845 F.3d 77, 82 (3d Cir. 2016).

9

Since the denials of qualified and Eleventh Amendment

immunity are appealable collateral orders, we may

discretionarily exercise pendent appellate “jurisdiction over

issues that are not independently appealable but [] are

intertwined with” these orders over which we “properly and

independently exercise[]” our jurisdiction. E.I. DuPont de

Nemours & Co. v. Rhone Poulenc Fiber & Resin

Intermediates, S.A.S., 269 F.3d 187, 203 (3d Cir. 2001). We

have exercised pendent appellate jurisdiction when (1) “an

otherwise non-appealable order is inextricably intertwined

with an appealable order,” or (2) it is “necessary to ensure

meaningful review of the appealable order.” OI Eur. Grp. B.V.

v. Bolivarian Republic of Venez., 73 F.4th 157, 176 (3d Cir.

2023) (citation modified).

Because whether a statute clearly expresses a cause of

action against a state actor is “logically antecedent to” the

question of sovereign immunity, see Vt. Agency of Nat. Res. v.

United States ex rel. Stevens, 529 U.S. 765, 779 (2000)

(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612

(1997)), these issues are sufficiently intertwined that we may

exercise “pendent appellate jurisdiction over the statutory

question,” id. at 770 n.2 (citing Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 50–51 (1995)). Thus, “it is appropriate

to decide whether a statute permits a cause of action against a

State before deciding whether the Eleventh Amendment bars

the suit.” Broselow v. Fisher, 319 F.3d 605, 607 (3d Cir. 2003)

(citation omitted). And, if the statute does not clearly express

an intent to cover the state conduct, we need not address

immunity altogether. Vt. Agency of Nat. Res., 529 U.S. at 779,

787.

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When reviewing a district court’s ruling on summary

judgment, “the Court of Appeals’ review is plenary and the

court should apply the same test the district court should have

utilized initially.” Wharton v. Danberg, 854 F.3d 234, 241 (3d

Cir. 2017) (internal quotation marks and citation omitted).

Summary judgment is granted when the record shows “there is

no genuine dispute as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

III.

A.

TCPA includes a broad restriction on robocalls,

prohibiting “any person” from “mak[ing] any call . . . using

any automatic telephone dialing system or an artificial or

prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The statute was

passed in response to “a torrent of vociferous consumer

complaints about intrusive robocalls.” Barr v. Am. Ass’n of

Pol. Consultants, Inc., 591 U.S. 610, 614 (2020) (plurality

opinion). At the time, consumers expressed “outrage[] over

the proliferation of intrusive, nuisance calls”—preceding

TCPA, over 300,000 solicitors called more than 18 million

Americans daily. TCPA, §§ 2(3), 2(6), 105 Stat. 2394. And

“federal legislation was needed because telemarketers, by

operating interstate, were escaping state-law prohibitions on

intrusive nuisance calls.” Mims v. Arrow Fin. Servs., 565 U.S.

368, 371 (2012). Congress ultimately determined that

“[b]anning” robocalls was necessary to address “th[e] nuisance

and privacy invasion” caused by “automated or prerecorded

telephone calls, regardless of the content or the initiator of the

message.” TCPA, §§ 2(10), 2(12), 105 Stat. 2394. Thus,

11

TCPA was adopted and amended the Communications Act of

1934 (“Communications Act”) to add such a prohibition.

TCPA, 105 Stat. 2394.

TCPA includes a private cause of action for violations

of the statute. 47 U.S.C. § 227(b)(3). A plaintiff can recover

at least $500 in damages for each call made in violation of the

robocalling prohibition. Id. § 227(b)(3)(B). And a district

court may award treble damages for a willful or knowing

violation of the statute. Id. § 227(b)(3)(C). The statute also

provides for injunctive relief to prevent future violations. Id. §

227(b)(3)(A).

Although the statute’s scope is extensive and the

enforcement mechanism is robust, TCPA also gives the

Federal Communications Commission (“FCC”) ample

flexibility to exclude robocalls from TCPA’s scope through the

administrative process. See 47 U.S.C. § 227(b)(2)(B)–(C).

And this flexibility was central to the successful passage of the

Act. Statement on Signing the Telephone Consumer

Protection Act of 1991, 27 Weekly Comp. Pres. Doc. 1877

(Dec. 20, 1991) (“I have signed the bill because it gives the

Federal Communications Commission ample authority[.]”).

B.

The applicability of TCPA to the government has long

been a subject of debate. The Bill was initially drafted with an

exemption for calls made by a “public school or other

governmental entity.” S. Rep. 102-178, at 5 (Oct. 8, 1991).

But that provision was removed and replaced with “an

exception for ‘any emergency purposes,’” id., such as to

“publish health and safety warnings,” H.R. Rep. 102-317, at 25

12

(Nov. 15, 1991). In 2016, the Supreme Court ruled federal

government contractors are not entitled to sovereign immunity

from TCPA liability when they “violate[] both federal law and

the Government's explicit instructions.” Campbell-Ewald Co.

v. Gomez, 577 U.S. 153, 166 (2016). The Court stressed there

is no sovereign immunity when “a Government agent ha[s]

‘exceeded his authority’ or the authority ‘was not validly

conferred.’” Id. at 167 (quoting Yearsley v. W.A. Ross Constr.

Co., 309 U.S. 18, 21 (1940)).

Following Campbell-Ewald, the FCC issued a

declaratory ruling, expressing its interpretation that the term

“person” in TCPA nonetheless excludes federal government

callers and contractors in the conduct of official government

business. In the Matter of Rules & Reguls. Implementing the

Tel. Consumer Prot. Act of 1991, 31 F.C.C. Rcd. 7394, 7394

(2016) (“Broadnet I”). In relevant part, the FCC emphasized

“robocalls . . . when made by federal legislators . . . are not

subject to the TCPA’s robocall consent requirement, as long as

the robocalls are conducted in the legislator’s official capacity

and not, for example, as part of a campaign for re-election.”

Id. at 7399. In light of the difficulty of cohering the FCC’s

interpretation with that in Campbell-Ewald, the FCC issued a

revised interpretation in 2020. In the Matter of Rules & Reguls.

Implementing the Tel. Consumer Prot. Act of 1991, 35 F.C.C.

Rcd. 15052 (2020) (“Broadnet II”). The FCC reversed its

position, in part, and agreed that government contractors are

not excluded from TCPA’s scope. Id. at 15056. But the FCC

retained its interpretation that federal government callers are

excluded and determined “state government callers in the

conduct of official business [] do not fall within the meaning

of ‘person’ in section 227(b)(1)” as well. Id. at 15059. Several

13

Commissioners dissented with this interpretation as applied to

state government callers. Id. at 15072–75.

Post-enactment discussion of the applicability of TCPA

to government callers was not limited to the FCC but also

continued in the halls of Congress. In 2015, Congress

amended TCPA to exclude any call “made solely to collect a

debt owed to or guaranteed by the United States.” Bipartisan

Budget Act of 2015, § 301(a)(1), 129 Stat. 588 (2015). And

one FCC Commissioner noted Congress’ inclusion of this

provision seemed inconsistent with the FCC’s existing

interpretations of the statute—“if the federal government is

truly outside the scope of the Telephone Consumer Protection

Act, it is unclear why Congress would need to have specifically

provided a debt-related exception to the law in the first place.”

Broadnet I, 31 F.C.C. Rcd. at 7394 (Statement of

Commissioner Jessica Rosenworcel, concurring). Ultimately,

the 2015 Amendment was severed from the statute after the

Supreme Court ruled that provision unconstitutionally favored

government speech. See Barr, 591 U.S. at 636. And, in that

case, one Justice suggested the statute does not apply to

government callers. Id. at 637 (Sotomayor, J., concurring in

judgment) (suggesting the statute would not be implicated if

the government had “plac[ed] the calls itself” (quoting Am.

Ass’n of Pol. Consultants, Inc. v. FCC, 923 F.3d 159, 169 n.10

(4th Cir. 2019))).

At least two circuits have addressed the applicability of

TCPA to government callers. In Cunningham v. Lester, the

Fourth Circuit held federal sovereign immunity barred a suit

against government contractors calling on behalf of the U.S.

Department of Health and Human Services, Centers for

Medicare & Medicaid Services (“CMS”). 990 F.3d 361, 365

14

(4th Cir. 2021). There, CMS relied on government contractors

to fulfill a statutory obligation to provide “notice of eligibility

for an applicable State health subsidy program.” 42 U.S.C. §

18083(b)(2). And, if relief was granted, CMS would be forced

to “implement[] a functional replacement” for using

contractors to provide the statutorily mandated notice because

a ruling for plaintiffs would void the existing government

contracts for automated calls. Cunningham, 990 F.3d at 368.

Thus, the Fourth Circuit ruled sovereign immunity barred the

suit because the United States was the real party in interest

since the judgment would “operate” against the sovereign. Id.

at 367.

In Cheng v. Speier, the Ninth Circuit, in an unpublished

opinion, addressed the applicability of TCPA to calls by

federal legislators. No. 22-16170, 2023 WL 4490352 (9th Cir.

July 12, 2023). There, the Ninth Circuit granted Chevron

deference to the FCC’s interpretation in Broadnet II and

thereby ruled that federal legislators conducting official

business do not constitute a “person” under TCPA. Id. at *1.

Judge Bress authored a dissenting opinion, arguing the court

should have alternatively ruled that sovereign immunity does

not preclude TCPA relief against federal legislators and

remanded on the statutory issue. Id. at *3 (Bress, J.,

dissenting). Following Cheng, the Supreme Court has

overruled the deference framework established in Chevron

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837

(1984). See Loper Bright Enters. v. Raimondo, 603 U.S. 369,

412 (2024).

Unlike Cunningham, which concerned federal

contractors, and Cheng, which concerned federal congressmen,

this case raises a question of first impression—whether state

15

legislators are encompassed by TCPA’s robocalling

prohibition.

IV.

TCPA prohibits “any person” from “mak[ing] any call

. . . using any automatic telephone dialing system or an

artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A).

And this “robocall restriction applies to ‘persons,’ which does

not include the Government itself.” Barr, 591 U.S. at 615 n.1.

Indeed, there is a “longstanding interpretive presumption that

‘person’ does not include the sovereign” when used in a statute.

Vt. Agency of Nat. Res., 529 U.S. at 780. This presumption,

however, “is not a ‘hard and fast rule of exclusion’” and “may

be disregarded upon some affirmative showing of statutory

intent to the contrary.” Return Mail, Inc. v. U.S. Postal Serv.,

587 U.S. 618, 627 (2019) (citations omitted); see also Int’l

Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500

U.S. 72, 83 (1991) (“[O]ur conventional reading of ‘person’

may . . . be disregarded if ‘[t]he purpose, the subject matter, the

context, the legislative history, [or] the executive interpretation

of the statute . . . indicate an intent, by the use of the term, to

bring state or nation within the scope of the law.’” (citation

omitted) (second and third alterations in original)).

The presumption of sovereign exclusion has many

bases. “Th[e] presumption reflects ‘common usage.’” Return

Mail, 587 U.S. at 627 (quoting United States v. Mine Workers,

330 U. S. 258, 275 (1947)). It is supported by the

Communication Act’s definition of a “person,” 47 U.S.C. §

153(39), which fails to include the government in its

definitional list, suggesting the sovereign is excluded under

expressio unius est exclusio alterius. See Return Mail, 587

16

U.S. at 627 (noting the failure to include the government in a

definitional list of a federal statute presumes the government is

excluded). 4 And it is a long-established principle of American

common law. See United States v. Hoar, 26 F. Cas. 329, 330

(C.C.D. Mass. 1821) (Story, J.) (“[It is] a safe rule founded in

the principles of the common law, that the general words of a

statute ought not to include the government, or affect its rights,

unless that construction be clear and indisputable upon the text

of the act.”).

In the context of a state sovereign, the canon also has its

basis in “‘the ordinary rule of statutory construction’ that ‘if

Congress intends to alter the usual constitutional balance

between States and the Federal Government, it must make its

intention to do so unmistakably clear in the language of the

statute.’” Vt. Agency of Nat. Res., 529 U.S. at 787 (quoting

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)).

And the presumption furthers “the doctrine that statutes should

be construed so as to avoid difficult constitutional questions.”

Id. Thus, the canon is “particularly applicable where it is

claimed that Congress has subjected the States to liability to

which they had not been subject before.” Id. at 781 (quoting

Will, 491 U.S. at 64).

“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.” Nardone v. United States, 302 U.S. 379, 383

(1937). And the scope of the exclusion, i.e., whether an

4

TCPA is a component of the Communications Act of 1934.

See TCPA, 105 Stat. 2394.

17

instrumentality, agent, or employee of the sovereign

constitutes a “person,” relies heavily on the “context” of the

statute. Cook Cnty., Ill. v. United States ex rel. Chandler, 538

U.S. 119, 127 (2003) (citation omitted). 5 “Context is not found

exclusively within the four corners of a statute.” Biden v.

Nebraska, 600 U.S. 477, 511 (2023) (Barrett, J., concurring)

(citation modified). “Background legal conventions, for

instance, are part of the statute’s context.” Id. at 511–12. Here,

we examine the context of TCPA to determine whether the

term “person” not only excludes the Commonwealth of

Pennsylvania from the statute’s scope but also Pennsylvania

state legislators when performing entirely legitimate functions

of their office.

A.

The Supreme Court last substantially discussed the

scope of the presumption as applied to government employees

in Nardone v. United States, 302 U.S. 379 (1937), which

interpreted a provision in the Communications Act of 1934, of

which TCPA is a part. There, the Court held the prohibition in

the Communications Act that “no person” shall wiretap in the

Communications Act applies to federal agents. Id. at 380–81,

383. And, thus, the statute’s prohibition on “any person”

divulging wiretapped content precludes a federal court from

considering wiretapped evidence proffered by federal officers.

Id. at 381. But the Court also recognized the term “person”

5

The Communications Act defines “person” as “an

individual, partnership, association, joint-stock

company, trust, or corporation,” 47 U.S.C. § 153(39),

“unless the context otherwise requires,” id. § 153

(emphasis added).

18

can, in other instances, exclude government officers when used

in a statute. Id. at 384. The case provided an illustrative

example—if a statute prohibited any person from driving over

a speed limit, it would clearly not apply to a police officer in

pursuit of a criminal or a firefighter responding to an alarm. Id.

In these instances, a statute’s context demonstrates including

government officers “would work obvious absurdity.” Id.

Although prior construction and consistent usage may

then suggest the term “person” should be read similarly in

TCPA as it has been in other parts of the Communications Act,

“[t]his principle . . . ‘readily yields to context.’” Return Mail,

587 U.S. at 629 (quoting Util. Air RegulReg. Grp. v. EPA, 573

U.S. 302, 320 (2014)). And such context includes “clear-

statement federalism rules.” Nebraska, 600 U.S. at 508

(Barrett, J., concurring).

B.

Our Constitutional design ensures that States “retai[n] a

significant measure of sovereign authority.” Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 549 (1985)

(citation omitted) (alteration in original); see also U.S. Const.

Amend. X (“The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.”). And a state’s

sovereign interests are particularly implicated when the

functions of its state government—especially, its state

legislature—are impaired, impeded, or called into question. As

the Supreme Court has long cautioned:

[T]he Constitution of the United States . . .

recognizes and preserves the autonomy and

19

independence of the States—independence in

their legislative and independence in their

judicial departments. [Federal] [s]upervision

over either the legislative or the judicial action of

the States is in no case permissible except as to

matters by the Constitution specifically

authorized or delegated to the United States.

Any interference with either, except as thus

permitted, is an invasion of the authority of the

State and, to that extent, a denial of its

independence.

Garcia, 469 U.S. at 549–50 (alterations in original) (quoting

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938)). To

preserve these sovereign interests, the federal government may

not, in most circumstances, “dictate[] what a state legislature

may and may not do.” Murphy v. Nat’l Collegiate Athletic

Ass’n, 584 U.S. 453, 474 (2018). Indeed, “[a] more direct

affront to state sovereignty is not easy to imagine.” Id.

In light of these principles, state legislators enjoy broad

absolute immunity from civil liability when engaging in core

legislative activities. See Youngblood v. DeWeese, 352 F.3d

836, 839 (3d Cir. 2003). But not all of a state legislator’s duties

are directly “related to the due functioning of the legislative

process.” Id. at 840 (citation omitted). And federal common

law does not afford state legislators immunity for “a wide range

of legitimate ‘errands’ performed for constituents,” including

“preparing so-called ‘news letters’ to constituents, news

releases, and speeches delivered outside the Congress.” Id.

(quoting United States v. Brewster, 408 U.S. 501, 512 (1972)).

Nevertheless, communication with constituents is a central and

“entirely legitimate” aspect of a legislator’s role. Brewster,

20

408 U.S. at 512. As amici Pennsylvania Republican and

Democratic Caucuses stress: “communications . . . on these

issues are a regular part of the official business done by” state

legislators. Republican and Democratic Caucuses of the

Pennsylvania State Senate and Republican Caucus of the

Pennsylvania House of Representatives Amicus Br. 9.

We are hesitant to conclude Congress has prohibited

state legislators from exercising these entirely legitimate

functions of their office when “they had not been subject

before” to “liability” for such acts. Vt. Agency of Nat. Res.,

529 U.S. at 781 (citation omitted). And, “if Congress intends

to alter the usual constitutional balance between States and the

Federal Government” in such a manner, we expect it to make

its “intention to do so unmistakably clear in the language of the

statute.’” Id. at 787 (citation omitted). Based on the

presumption of sovereign exclusion, the general language of

“any person” in § 227(b)(1) does not suffice. See id.

C.

The contextual considerations that caution against

extending general prohibitory language to encompass a state

legislator’s legitimate functions are reflected in the Supreme

Court’s jurisprudence regarding 42 U.S.C. § 1983, which

similarly imposes liability on “every person” for a violation.

In the context of § 1983, the Supreme Court recognizes a state

officer can be subject to liability as a “person” even when

performing government functions. See Hafer v. Melo, 502

U.S. 21, 27 (1991) (“A government official in the role of

personal-capacity defendant [] fits comfortably within the

statutory term ‘person.’”); Will, 491 U.S. at 71 n.10 (“Of

course a state official in his or her official capacity, when sued

21

for injunctive relief, would be a person under § 1983 because

official-capacity actions for prospective relief are not treated

as actions against the State.” (citation and internal quotation

marks omitted)). But, although they are also state officers,

state legislators are subject to a different rule. See Tenney v.

Brandhove, 341 U.S. 367, 378 (1951).

In Tenney, a § 1983 suit was brought against state

legislators who served on a legislative investigatory

commission that allegedly sought “to intimidate and silence

plaintiff and deter and prevent him from effectively exercising

his constitutional rights.” Id. at 371. The Court determined the

“general language” of “every person” in § 1983 should not be

read to “subject legislators to civil liability for [such] acts done

within the sphere of legislative activity.” Id. at 369, 376.

Rather, our legislative context reflects “a tradition [] well

grounded in history and reason” that “Congress” is “a staunch

advocate of legislative freedom” and does not limit it in a

statute “by covert inclusion in [] general language.” Id. at 376.

Thus, the Court construed the term “person” in § 1983 such

that it “does not create civil liability for such conduct” by state

legislators. Id. at 369, 379. As the dissenting opinion noted,

state legislators are thus excluded from general liability in a

manner “[n]o other public official” is. Id. at 382 (Douglas, J.,

dissenting).

Section 1983, with its “under color” of state law

language, was “intended to radically alter the distribution of

power between the federal government and the states.” Larsen

v. Senate of Com. of Pa., 152 F.3d 240, 248 (3d Cir. 1998).

TCPA, on the other hand, was primarily precipitated by “[t]he

use of the telephone to market goods and services.” TCPA, §

2(1), 105 Stat. 2394. Thus, TCPA’s context suggests that

22

Congress did not “intend[] to alter the usual constitutional

balance between States and the Federal Government.” Vt.

Agency of Nat. Res., 529 U.S. at 787 (citation omitted); see also

id. at 781 (noting the presumption of sovereign exclusion “may

be disregarded only upon some affirmative showing of

statutory intent to the contrary”).

D.

We do not cast doubt on the power of Congress to

exercise powers “specifically authorized or delegated” to it.

Garcia, 469 U.S. at 549 (citation omitted). But our

constitutional structure “was designed in large part to protect

the States from overreaching by Congress.” Id. at 551. We are

thus hesitant to assume Congress would go so far as to hinder

state legislators from communicating with their constituents by

simply using the general prohibitory language in § 227(b)(1),

especially when Pennsylvania House staff have decided these

communications have “a clear legislative purpose and [serve

the] public benefit.” JA 322. It would be a “big assumption”

to presume Congress would “limit the freedom of State

legislators” in this fashion. Tenney, 341 U.S. at 376. “It is a

sound and important principle that the representative ought to

be acquainted with the interests and circumstances of his

constituents.” Federalist No. 56, at 379 (Hamilton) (Jacob E.

Cooke ed., 1961). And this remains especially true for “the

state legislature, where all the local information and interests

of the state are assembled.” Id. at 380. Context suggests

Congress would not “impinge on a tradition so well grounded

in history and reason.” Bogan v. Scott-Harris, 523 U.S. 44, 49

(1998) (quoting Tenney, 341 U.S. at 376).

23

Indeed, we hesitate to impose liability on state

legislators when they act “not for their private indulgence but

for the public good.” Tenney, 341 U.S. at 377. Here, it is

evident that the calls were made for the “public benefit,” JA

322, rather than “private indulgence,” Tenney, 341 U.S. at 377.

In one call, Bradford advertised an event “to help [constituents]

connect to [a] health care coverage plan.” JA 283. In another

call, Bradford informed constituents of an employment

opportunity to “become a part of the 2020 census team and earn

27 dollars an hour.” JA 284. A third call informed constituents

of a “document shredding event” hosted by Bradford “to help

protect [constituents’] identity and get rid of those old

documents taking up space.” JA 283. A different call notified

constituents that Bradford’s office “can assist with questions

on unemployment compensation, resources for small

businesses and help [constituents] access government

services” during the Covid-19 pandemic. JA 284. And another

call let constituents know that Bradford was “hosting a Family

Fair for residents of the 70th district” at a local zoo. JA 283.

Such communications related to the health, safety and general

welfare of the people clearly serve the “public good”—as

opposed to any personal affairs or a re-election campaign.

Tenney, 341 U.S. at 377. It is thus unsurprising that House

Employees authorized them as being made for the “public

benefit.” JA 322.

In light of these considerations, we cannot conclude, as

Appellee asks, that Congress through TCPA’s general robocall

restriction sought to restrict or “prevent a state legislature from

expressing its views on [these] subjects of public importance.”

Murphy, 584 U.S. at 483. “[S]tatutes should be construed so

as to avoid” such “difficult constitutional questions.” Vt.

Agency of Nat. Res., 529 U.S. at 787. If Congress expected us

24

to disregard this context and assume it had “significantly

alter[ed] the balance between federal and state power,” it

would have “enact[ed] exceedingly clear language.” Ala.

Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S.

758, 764 (2021). Here, the term “person” in § 227(b)(1) is not

so “unmistakably clear” that we can presume Congress

restricted state legislators from carrying out these legitimate

functions of their office. Vt. Agency of Nat. Res., 529 U.S. at

787 (citation omitted).

E.

Because TCPA does not encompass Bradford’s

legitimate functions as a state legislator, we need not opine on

how the term “person” in § 227(b)(1) applies to other

government officials. Nor do we opine on whether the FCC’s

interpretation of “person” in § 227(b)(1) should be entitled to

Skidmore deference. 6 But we do emphasize that TCPA gives

the FCC “the flexibility” to exclude “automated or prerecorded

6

The FCC is the implementing agency of TCPA. 47

U.S.C. § 227(b)(2). Thus, we analyze its interpretation

of TCPA under the framework established in Skidmore

v. Swift & Co., 323 U.S. 134, 140 (1944). See Loper

Bright, 603 U.S. at 388.

25

calls that it finds are not considered a nuisance or invasion of

privacy.” TCPA, § 2(13), 105 Stat. 2394. 7

Furthermore, since TCPA does not provide a cause of

action against Bradford for these calls, we do not opine on

whether Eleventh Amendment immunity bars the claims

against Bradford or if the Commonwealth of Pennsylvania is

the real party in interest in this suit. See Vt. Agency of Nat.

Res., 529 U.S. at 787.

Our holding today is a narrow one: § 227(b)(1)’s

robocall restriction, by using the general term “person,” does

not encompass calls made by state legislators when exercising

legitimate functions of their office for the public benefit.

7

TCPA grants the FCC the authority to exempt certain

calls from TCPA’s robocalling prohibition. 47 U.S.C.

§ 227(b)(2)(B)–(C). But any exemptions made by the

FCC must specify: “(i) the classes of parties that may

make such calls; (ii) the classes of parties that may be

called; and (iii) the number of such calls that a calling

party may make to a particular called party.” Id. §

227(b)(2)(I). Currently, the FCC has not explicitly

exempted calls by government officials as a class using

this administrative procedure. See In the Matter of

Rules & Reguls. Implementing the Tel. Consumer Prot.

Act of 1991, 35 F.C.C. Rcd. 15188, 15192 (2020)

(listing exempted calls and callers).

26

V.

Because the calls made by Pennsylvania House

Representative Bradford are not encompassed by § 227(b)(1),

we will reverse.

27