Robocalls: vicarious liability of franchisors under the TCPA

By Barry M Heller

In a FranCast issued last year, we reported on a case called Carolyn Anderson v Domino’s Pizza Inc, in which a district court dismissed a claim filed under a state version of the federal Telephone Consumer Protection Act (TCPA). In that case, a consumer sought to hold a franchisor liable for illegal robocalls made by the franchisor’s franchisee (using a telemarketing firm).

In dismissing the claim, the court relied on the fact that the state version did not contain the language ‘on whose behalf of,’ which the court noted was contained in the federal version of the Act. Franchisors have been concerned that this language in the federal act will be used by consumers in support of allegations that a franchisor should be responsible under the TCPA for violations of the act committed by its franchisees.

May parties on whose behalf telemarketing robocalls are made be held liable for that third party’s violations of the TCPA? The Federal Communications Commission, the agency with authority to interpret the TCPA, recently issued a Declaratory Ruling to answer that question. The commission concluded that sellers who did not actually place calls may only be ‘vicariously’ liable and subject to damages for third-party TCPA violations if federal common law principles of agency apply. The TCPA’s restrictions on auto-dialed calls…

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