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Two companies on whose behalf telephone solicitations were made may be held liable for those calls under the Telephone Consumer Protection Act, according to an Aug. 14 decision by the U.S. District Court for the Northern District of West Virginia, which applied a recent declaratory ruling by the Federal Communications Commission interpreting the statute's “on behalf of” language (Mey v. Monitronics Int'l, Inc., N.D. W.Va., No. 5:11-cv-00090-IMK-JSK, 8/14/13).
Diana Mey brought suit against Versatile Marketing Solutions, Inc. for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227, stemming from its repeated calls to her number, despite it being listed on the national Do Not Call Registry. Because the calls were made on behalf of Monitronics International, Inc. and UTC Fire and Security Americas Corp., Inc., she sought to have them held vicariously liable.
while a seller does not generally “initiate” calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.
Dish Network, LLC, 28 F.C.C.Rcd. 6574.
Applying that ruling to the current case, Judge Irene M. Keeley concluded that Mey has clearly met her burden at summary judgment, as it evident that the calls were made “on behalf of” Monitronics and UTC. As such, both may be potentially liable under §227(c).
This conclusion, she added, is not changed by any of the defendants' arguments. Specifically, neither has shown that the ruling “somehow exceeds the FCC's power to interpret the TCPA,” and they are not excluded from liability under the statute because they are “manufacturers,” not “sellers.” With regard to this latter argument, she explained that the FCC defined “seller” to mean “the person or entity on whose behalf a telephone call or message is initiated …,” and the two are thus sellers.
As such, the court denied the defendants' motions for partial summary judgment.
Text of the court's decision is at http://www.bloomberglaw.com/public/document/Mey_v_Monitronics_International_Inc_et_al_Docket_No_511cv00090_ND -- at Bloomberg Law's website.
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