FCC Asked to Decide If Carriers can be Held Liable for Actions of Third–Party Telemarketers Under “Do–Not–Call” Legislation


The FCC is seeking comments on three related petitions for declaratory ruling raising similar issues concerning the Telephone Consumer Protection Act of 1991 (TCPA).  The TCPA is best known for imposing (along with FCC rules) the national Do-Not-Call Registry and company-specific do-not-call lists to protect consumers from unwanted telephone solicitations.  The TCPA provides a private right of action to remedy violations of the “Do Not Call” laws and also provides that a state can bring suit on behalf of its residents concerning such violations.  These petitions, all stemming from pending federal court lawsuits filed under the TCPA, present questions related to TCPA liability for companies when their third-party retailers make the unlawful telemarketing calls.  To date, states and courts have generally adhered to a strict-liability approach in fining carriers for Do Not Call violations, even when such calls were made by independent third-party telemarketing agencies. The extent to which the FCC will continue to hold carrier’s liable for the actions of third-parties appears to hinge on how the FCC will define the agency relationship between the carrier and its telemarketer, what constitutes a call made “on behalf of” a company and whether the party liable must be the one that actually initiates the call.  The private petitioners are pressing the FCC to require the finding of a direct and tangible link to a third-party’s unlawful action before finding the company liable. Such a finding could finally provide carriers with some insulation from the actions of rogue telemarketers.

If your company employs third party telemarketers you should consider filing comments with the FCC explaining why a new approach to carrier liability for TCPA violations is needed.

The FCC Public Notice requesting Comments is linked here: https://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0404/DA-11-594A1.pdf


If you have questions regarding this Advisory or are interested in submitting comments, please contact the attorney assigned to your account.

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