UNITED STATES COURT OF APPEALS April 23, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

GERALD SILVER, on behalf of himself and others similarly situated,

Plaintiff - Appellant,

v. No. 23-2058

CITY OF ALBUQUERQUE,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:22-CV-00400-MIS-GBW) _________________________________ Carter B. Harrison, IV, Harrison & Hart, LLC, Albuquerque, New Mexico for Plaintiff- Appellant. Cerianne L. Mullins (Mark T. Baker, with her on the brief), Peifer Hanson Mullins & Baker, P.A., Albuquerque, New Mexico, for Defendant-Appellee. _________________________________ Before MATHESON, KELLY, and EID, Circuit Judges. _________________________________ EID, Circuit Judge. _________________________________

In 2022, Gerald Silver brought a putative class action against the City of Albuquerque alleging that the City violated the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq., when it made pre-recorded phone calls Appellate Case: 23-2058 Document: 78-1 Date Filed: 04/23/2025 Page: 2

inviting its residents to attend virtual town hall meetings during the COVID-19 pandemic. The City moved to dismiss Silver’s claim on two grounds: First, the City argued it was not subject to the TCPA because it was not a qualifying “person” under the statute; and second, the City contended that, even if it was subject to the TCPA, the calls fell under the TCPA’s exception for calls made for emergency purposes. The district court granted the motion, and Silver timely appealed.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s dismissal of Silver’s claim. Even assuming the TCPA applies to local governments, Silver’s complaint does not state a claim upon which relief can be granted. Although the TCPA generally prohibits the use of robocalls, see 47 U.S.C. § 227 et seq., it excepts from coverage “calls made necessary in any situation affecting the health and safety of consumers,” 47 C.F.R. § 64.1200(f)(4). And because the City made the calls to inform citizens that town hall meetings would be held virtually—a circumstance “made necessary” by the social-distancing requirements of the COVID-19 pandemic—the calls fall squarely within that exception.1

I.

During the COVID-19 pandemic, Albuquerque—like most cities—found itself grappling with the question of how to conduct city operations in a socially distanced society. One of the City’s solutions was to host virtual town halls, which residents

1 Because we conclude that the City’s calls fall within the TCPA’s emergency purposes exception, we need not determine whether local governments qualify as persons under that statute. 2 Appellate Case: 23-2058 Document: 78-1 Date Filed: 04/23/2025 Page: 3

could access via landline, mobile device, or the internet. Silver alleges that the City held at least sixteen virtual town halls between March 23, 2020, and May 19, 2022.2 The City made robocalls to its residents, as designated by the (505) area code, that informed them about the virtual town halls. Silver’s complaint alleges that he received “at least seven prerecorded voice calls from the City on his cell phone” about the town halls. Aplt. App’x at 19. The seven calls occurred on the follo