FCC: Companies Now Liable for Unsolicited Calls Made by Third-Party Vendors

FCC: Companies Now Liable for Unsolicited Calls Made by Third-Party Vendors

By Amanda Antell

As of May 9, 2013, the Federal Communications Commission (FCC) made it clear that companies who hire third-party vendors to make unsolicited calls to consumers are subject to fines and penalties under the Telephone Consumer Protection Act (TCPA).

The decision was made in response to two lawsuits — Charvat v. Echostar and United States v. Dish Network – which accused the companies of violating the TCPA by hiring third-party contractors to call consumers without their prior express consent. Under this new declaration, a company can be held liable for the acts of the third-party vendor.

The questions presented to the FCC by these cases were:

• Under the TCPA, does a call placed by an entity that markets the seller’s good or services qualify as a call made on behalf of, and initiated by, the seller, even if the seller does not make the telephone call (i.e., physically place the call)?
• What should determine whether a telemarketing call is made “on behalf of” a seller, thus triggering liability for the seller under the TCPA?
• Should federal common law agency principles apply?
• What, if any, other principles could be used to define “on behalf of” liability for a seller under the TCPA?

The FCC ruling, if adopted by courts, will make companies liable for non-compliant conduct by third-party marketing conducts if:

The seller is aware of “ongoing conduct encompassing numerous acts” by the third party
The seller fails to terminate the third party and/or promotes the third party’s conduct

In these circumstances, the seller has the ability to oversee the conduct, even if that supervisory power is unexercised. As such, the liability is determined on “general common law” agency-related principles, rather than state law. Factors for third-party liability may include:

• Whether the seller grants the third-party access data of the company’s clients;
• The third-party’s right to use a seller’s trade name, trademark, etc., and whether the seller approved or wrote the third party’s telemarketing scripts;
• If the seller knows the third party is violating the TCPA and/or FCC rules on the seller’s behalf, and fails to halt the violations.

TCPA Legal Remedies for Consumers

Companies found in violation of the TCPA can face fines up to $1500. Consumers who are harassed or spammed by unsolicited cell phone calls or text messages should consider their legal options.

If you believe you’ve been the victim of a TCPA violation, you have legal options. Please visit the Text Message Spam Cell Phone Call TCPA Class Action Lawsuit Investigation for more information. There, you can submit your claim for a free legal review and if it qualifies for legal action, a seasoned TCPA lawyer will contact you for a free, no-obligation consultation. You will be guided through the litigation process at no out-of-pocket expenses or hidden fees. The TCPA attorneys working this investigation do not get paid until you do.

Updated June 17th, 2013

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