United States District Court, D. Delaware
ANDREW R. PERRONG, on behalf of himself and all others similarly situated, Plaintiffs,
LIBERTY POWER CORP., L.L.C., Defendant.
J. Toms, Whiteford Taylor Preston LLC, Wilmington, Delaware.
Of Counsel: Aytan Y. Bellin, Bellin & Associates LLC,
White Plains, New York. Counsel for Plaintiff.
Alexandra Rogin, Eckert Seamans Cherin & Mellott, LLC,
Wilmington, Delaware. Of Counsel: Charles A. Zdebski, Jeffrey
P. Brundage, Eckert Seamans Cherin & Mellott, LLC,
Washington, D.C. Counsel for Defendant.
C. Weiss, Chad A. Readler, Eric R. Womack, Anjali Motgi,
Laura D. Hatcher, United States Department of Justice,
Washington, DC. Counsel for the United States of America.
NOREIKA, U.S. DISTRICT JUDGE
Andrew R. Perrong (“Plaintiff or “Perrong”)
filed this lawsuit against Defendant Liberty Power Corp.
L.L.C. (“Defendant” or “Liberty
Power”), asserting “violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227, and the
regulations promulgated thereunder (the
‘TCPA').” (D.I. 1 ¶ 1). In his
Complaint, Plaintiff alleges that Liberty Power violated the
TCPA by using an automatic telephone dialing system or an
artificial or prerecorded voice to call him without his prior
consent. (Id. ¶ 2).
pending before the Court is Liberty Power's “Motion
to Dismiss Plaintiffs Complaint for Failure to State a Claim
Upon Which Relief Can Be Granted and Partial Motion to
Dismiss Plaintiff s Complaint for Lack of Subject Matter
Jurisdiction.” (D.I. 8). Plaintiff opposes the motion.
(D.I. 12). Additionally, because Liberty Power's defenses
raise a constitutional question - specifically whether the
TCPA violates the First Amendment - pursuant to Rule 5.1(c)
of the Federal Rules of Civil Procedure, the United States
has intervened and filed a brief in support of the TCPA.
(D.I. 23). In response to a request from the Court, the
parties also submitted supplemental authorities regarding the
constitutionality of the TCPA. (D.I. 43, 44, 45 & 47). On
May 10, 2019, the Court heard oral argument. For the
following reasons, Liberty Power's motion to dismiss is
enacted by Congress in 1991, the TCPA was a response to
“[v]oluminous consumer complaints about abuses of
telephone technology.” Mims v. Arrow Fin. Servs.,
LLC, 565 U.S. 368, 370-71 (2012); see also Am.
Ass'n of Political Consultants, Inc. v. Fed. Commc'ns
Comm'n, 923 F.3d 159, 161 (4th Cir. 2019). Relevant
here, the TCPA prohibits “any call (other than a call
made for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice . . . to
any telephone number . . . for which the called party is
charged for the call, unless such call is made solely to
collect a debt owed to or guaranteed by the United
States.” 47 U.S.C. § 227(b)(1)(A)(iii). As is
apparent from the statutory language quoted, the prohibition
is subject to three exemptions: (1) calls made for
“emergency purposes, ” (2) calls made with the
“prior express consent of the called party, ” and
(3) calls “made solely to collect a debt owed to or
guaranteed by the United States” (hereinafter,
“the debt-collection exemption”). Id.
Congress added the debt-collection exemption in November 2015
as part of the Bipartisan Budget Act of 2015. (D.I. 23 at 3).
It is the debt-collection exemption that forms the basis of
Defendant's constitutional challenge.
Factual Background of the Litigation
Complaint alleges that on March 13, 2018, Liberty Power
“using an automatic telephone dialing system, caused to
be made at least one (1) call to Plaintiff on his Voice Over
Internet Protocol (‘VOIP') telephone using a
prerecorded or artificial voice, without Plaintiff's
prior express permission, to encourage him to purchase energy
services from Defendant.” (D.I. 1 ¶ 1; see
also Id. ¶ 16). The voice “said that
Defendant could provide Plaintiff with a discount on
Plaintiff's energy bill and directed Plaintiff to press 1
to speak to an account representative. After Plaintiff
pressed 1, a person with whom Plaintiff spoke over the
telephone identified the caller as Liberty Power, i.e.,
Defendant.” (D.I. 1 ¶ 16). “Plaintiff was
charged for this call.” (Id. ¶ 2).
STANDARD OF REVIEW
survive a motion to dismiss, a civil plaintiff must allege
facts that ‘raise a right to relief above the
speculative level on the assumption that the allegations in
the complaint are true (even if doubtful in
fact).'” Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule
12(b)(6) is appropriate if a complaint does not contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The Court is
not obligated to accept as true “bald assertions”
or “unsupported conclusions and unwarranted
inferences.” Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997). Instead, “[t]he
complaint must state enough facts to raise a reasonable
expectation that discovery will reveal evidence of [each]
necessary element” of a plaintiff's claim.
Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315, 321 (3d Cir. 2008) (internal quotation marks
is a jurisdictional matter and thus ‘a motion to
dismiss for want of standing is also properly brought
pursuant to Rule 12(b)(1).'” Susinno v. Work
Out World, Inc., No. 15-5881 (PGS), 2017 WL 5798643, at
*1 (D.N.J. Nov. 28, 2017). “Challenges to subject
matter jurisdiction under Rule 12(b)(1) may be facial or
factual.” Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 105 (3d Cir. 2015). A facial challenge
contests the sufficiency of the pleadings, whereas a factual
challenge contests the sufficiency of jurisdictional facts.
Id. In reviewing a facial challenge, the Court
considers only the allegations in the complaint and any
documents referenced in or attached to the complaint, in the
light most favorable to the plaintiff. See Church of
Universal Bhd. v. Farmington Twp. Supervisors, 296
Fed.Appx. 285, 288 (3d Cir. 2008). In contrast, when
reviewing a factual challenge, the Court may weigh and
consider evidence outside the pleadings. See Davis v.
Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016); see
also Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000). In a factual challenge, “no
presumptive truthfulness attaches to plaintiffs'
allegations.” Davis, 824 F.3d at 346 (quoting
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)).
Power seeks dismissal of Perrong's claims, arguing that
the TCPA is unconstitutional because it violates the First
Amendment. (D.I. 8-1 at 3-11). Liberty Power further
argues that the Court does not have subject matter
jurisdiction to issue an injunction because Perrong lacks
standing to pursue his claims. (Id. at 12-17).
Before resolving these issues, the Court will first address
the Government's argument that Liberty Power does not
have standing to assert a constitutional challenge to the
TCPA. (See D.I. 23 at 9-11).