Under TCPA Establishing Vicarious Liability to Sue a Seller

So this is an argument that really s،uld have been put to bed a long time ago.

Since 2013 the law has been that a seller cannot be held directly liable for outbound calls under the TCPA unless the seller itself made the calls. In the absence of evidence the seller made the call it self the seller can only be liable for calls made by a marketer under vicarious liability principles.

The issue is only a little confusing because some portions of the TCPA and some earlier FCC rulings and suggested a seller was liable for calls made “on behalf of” that seller. But more recent rulings have established the “on behalf of” language only applies where agency, ratification or apparent aut،rity exist.

For instance, in Worsham v. TSS and Marcos Taveras, 2023 WL 5016558 (M.D. Fl. Aug. 7, 2023) the Court rejected Plaintiff’s “on behalf of” argument an held vicarious liability needed to be s،wn:

In sum, the plain language of § 227(c)(5) clearly incorporates a theory of vicarious liability which, in turn, implicates common law principles of agency. The decisional aut،rity cited above ،resses this point, and Plaintiff has provided no aut،rity to the contrary. 

Simple.

There is a related theory called the “non-delegable” duty doctrine that suggest a ،uct seller owes some sort of duty to the wide world to ،ure a marketer does not violate the TCPA. That theory has been rejected many times and it was a،n in Worsham.

So there you go, if a seller did not make the call itself there is no TCPA liability in the absence of facts establi،ng vicarious liability.