So this is an argument that really should 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 authority 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 shown:
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 authority cited above buttresses this point, and Plaintiff has provided no authority to the contrary.
There is a related theory called the “non-delegable” duty doctrine that suggest a product seller owes some sort of duty to the wide world to assure a marketer does not violate the TCPA. That theory has been rejected many times and it was again 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 establishing vicarious liability.
Also, as a reminder these sorts of tips and tricks are available FREE in our incredible magazine- but only until September 15, 2023. Get on the list NOW!