The FCC’s declaratory ruling re TCPA vicarious liability — one year later: trends and takeaways

By Perrie Michael Weiner and Patrick Hunnius

A year ago, we reported on the Federal Communications Commssion’s (FCC’s) declaratory ruling that addressed the issue of whether parties who did not actually place telemarketing robocalls could be either directly or vicariously liable for calls made on their behalf in violation of the Telephone Consumer Protection Act (TCPA). 

How has the declaratory ruling been applied since then? Seeking to understand significant trends and identify takeaways for businesses aiming to avoid vicarious liability exposure risk, we took a careful look at 12 federal court decisions issued since then. 

In its ruling, the FCC clarified that sellers who did not actually place calls cannot be directly liable under sections 227(b) and (c) of the act and could only be held vicariously liable under these sections if federal common law principles of agency apply. Vicarious liability, according to the FCC, may only derive from formal agency, apparent authority or ratification…

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