Robocalls and third-party violations: FCC rules on vicarious liability under the TCPA

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By Perrie Michael Weiner, Esteban Morales and Joshua Briones

The Federal Communications Commission recently clarified whether parties on whose behalf telemarketing ‘robocalls’ are made may be liable for third-party violations of the Telephone Consumer Protection Act (TCPA).

Retailers 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 was enacted to regulate and monitor the use of telemarketing to consumers. Among other things, Section 227(b) prohibits calls made without consent and using ‘automatic telephone dialing systems’ (as that term is defined by the TCPA). Section 227(c) makes it unlawful to ‘initiate any telephone solicitation… to any residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry.’ Under both sections, private parties may seek to recover damages and injunctive relief…

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