Third Party Liability under the TCPA (2)

In recent years, the consumer industry has seen a great emergence of claims filed by consumers under the Telephone Consumer Protection Act (“TCPA”).  This statute was designed to protect consumers from unsolicited communication by limiting the use of automatic dialing systems, artificial or prerecorded voice messages, text messages and fax machines.

While the statute is fairly new, claims have continued to rise by as much as 35% annually before this year.  It is no surprise that TCPA claims have made a strong dominance in the marketplace considering the increased use of cell phones by consumers world wide. 

When reading the plain language of the statute, it reflects that the liable party is the company making the contact, be it a phone call, auto dialer, text or fax.  However several recent decisions have expanded this liability to make the companies “calling the shots” vicariously liable under the statute.  Vicariously liability is the responsibility of one party for the failure of another, with whom the party had a relationship.  In the Ninth Circuit decision, Gomez v. Campbell-Ewald, the court held that liability under the TCPA applies to all parties involved.  In Gomez, the United States Navy enlisted Campbell-Ewald, a marketing consultant, to launch a recruiting campaign.  Campbell-Ewald used a third party to send out text messages to potential recruits who consented to receive unsolicited texts.  Unfortunately the third party sent a text to Gomez, who had not agreed to receive these texts.  Despite the fact that the defendant’s name was never used, it was found liable under the statute.  This decision extended liability to a party that did not initiate the call or text.

Likewise, in the Eleventh Circuit case Palm Beach Gold Center of Boca Inc. v. Sarris, D.D.S., the U.S. Court of Appeals held that a company may be liable under the TCPA for faxes sent on its behalf.  In this case Sarris D.D.S., a dental center, had a marketing company send a promotional fax on its behalf.  Initially, the court dismissed the TCPA claims stating that the dental center could not be liable under the statute because it did not directly send the fax to the consumer, however on appeal, the court reversed its decision, holding that the center could be liable under vicarious liability principles, even though it did not send the fax directly.   

Third-party liability issues are central to many TCPA cases as companies often utilize a third party to make contact on their behalf.  If you believe your rights have been violated under the Telephone Consumer Protection Act, contact SmithMarco P.C. for a completely free case review.