Andrew R. Perrong v. MATTHEW BRADFORD; CLEO COMMUNICATIONS 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.

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(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 3 rd 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

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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

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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

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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.

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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.

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“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

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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

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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).

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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,

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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

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(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

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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

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(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

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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

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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.

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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).

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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

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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,

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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

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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

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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).

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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

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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.

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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).

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V.
Because the calls made by Pennsylvania House
Representative Bradford are not encompassed by § 227(b)(1),
we will reverse.

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