PHILADELPHIA – A federal judge ruled that a frequent filer of Telephone Consumer Protection Act litigation was not entitled to amend his case against an energy company, as the judge found that the proposed allegation lacked statutory merit.
U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson ruled April 13 to deny plaintiff Andrew Perrong’s motion to amend his complaint against South Bay Energy Corp., when he had attempted to add a count for violation of the TCPA.
“South Bay Energy Corp. is an electric generation supplier that sells residential electric services to customers. It utilizes telemarketing to make sales, and it hired Webman’s World, LLC to make telemarketing calls on its behalf. Adam Webman owns and operates Webman’s World. On Nov. 11-12, 2020, Webman’s World made telemarketing calls on behalf of South Bay to Perrong’s residential telephone number,” Wolson said.
“At the time that Webman’s World made those calls, Perrong’s phone number was listed on the national Do-Not-Call Registry. In addition, South Bay, Webman’s World, and Mr. Webman did not have a written do-not-call policy in place when Webman’s made those calls to Perrong. Perrong does not allege that he ever requested not to receive telemarketing calls made on behalf of South Bay.”
On Nov. 18, 2020, Perrong filed a putative class action complaint against South Bay for violating the TCPA, by calling him even though his phone number is listed on the national DNC List. The Court entered a scheduling order in this case and ordered that any motions to amend the complaint were due by March 31, 2021.
On March 18, 2021, after receiving some discovery, Perrong moved to amend his complaint in order to include the above allegation, add Webman’s World and Mr. Webman as defendants in this matter and assert an additional claim against defendants, in Count II, for violation of the TCPA, specifically 47 C.F.R. Section 64.1200(d)(1).
In Count II of the proposed amended complaint, the challenged conduct is the defendants’ alleged failure to have a written policy for maintaining a do-not-call list, as required by 47 C.F.R. Section 64.1200(d)(1).
South Bay opposed the motion to amend with respect to the addition of Count II only.
Wolson explained the Court must ask itself that had defendants’ conduct that Perrong challenges not occurred, would he have suffered an injury? According to Wolson, if he would have, then the challenged conduct did not actually cause Perrong’s injury; if not, then it did.
“Perrong’s injury does not come from defendants’ alleged violation of Section 64.1200(d)(1). That provision requires a company to maintain an internal list of subscribers who requested that the company not call them,” Wolson said.
“That provision applies only to individuals who have directed a company not to call them. Perrong never directed South Bay, Webman’s World, or Mr. Webman not to call him. That is because Perrong did not satisfy the ‘regulatory prerequisite’ before he could bring a claim under Section 64.1200(d)(1). Even if one or more defendants had maintained an internal do-not-call list, that compliance would not have prevented them from calling Perrong.”
Per Wolson, though Perrong attempted to avoid this conclusion by suggesting that Section 64.1200(d)(1) requires companies to maintain an internal policy to avoid calling anyone on the national DNC List, the regulatory language “does not support his interpretation and no party has directed the Court to any official FCC interpretation of Section 64.1200.”
“Section 64.1200 is not ambiguous. The language ‘not to receive telemarking calls made by or on behalf of that person or entity’ refers back to the ‘person or entity’ that ‘initiates’ a call. Thus, the provision applies to calls that a company might make to a list of people that have directed the company not to call them. The regulation contemplates a specific list, which is different from (but might overlap with) the national DNC List,” Wolson said.
“The regulation’s structure confirms this interpretation. Section 64.1200(d) prohibits a company from calling individuals who have directed the company not to call them. Section 64.1200(c)(2) prohibits calls to individuals on the national DNC List, with certain limited exceptions. If Section 64.1200(d) applied to every individual on the national DNC List, it would render Section 64.1200(c)(2) superfluous, or at least ‘insignificant.”
Wolson stated that Perrong may be correct that the defendants violated the TCPA if they failed to maintain a list of individuals who directed South Bay not to call them – but since Perrong never asked to be on such a list, its non-existence did not cause his injury.
Put another way, even if defendants had complied with the TCPA and maintained an internal do-not-call list, their compliance would not have prevented a call to Perrong, because he would not have been on that list. Instead, Perrong’s injury traces to the violation of a different provision, Section 64.1200(c)(2). Thus, Wolson denied Perrong the opportunity to amend his complaint.
“The TCPA regulation on which Perrong relies does not require a company to maintain a written policy concerning calls to people on the national DNC List. But that’s the only list on which Perrong was listed,” Wolson said.
“Because defendants’ compliance with Section 64.1200(d)(1) would not have avoided Perrong’s injury, he does not have standing to sue for a violation of that provision. The Court will therefore deny his motion to amend his complaint to the extent it seeks to add Count II.”
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05781
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com