The TCPA - West Virginia District Court Holds Defendant Not Liable For Calls Made On Its Behalf

by Burr & Forman

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Mey v. Pinnacle Security, LLC, No. 5:11-cv-47, 2012 WL 4009718 (N.D. W.Va. Sept. 12, 2012)

Plaintiff filed a purported class action lawsuit relating to a call from an unidentified party, advertising Defendant’s goods and services received on a cell phone she owned but was being used by her son. Defendant moved for summary judgment, arguing that it did not make the call, and, as such, was not liable for the alleged TCPA violation. Concluding that the TCPA authorizes two private causes set forth in: (1) 47 U.S.C. § 227(c)(5); and (2) 47 U.S.C. § 227(b)(3), the court held that Plaintiff could not maintain a claim under Section 227(c)(5) because it was undisputed that she only received one call allegedly placed on behalf of Defendant. Section 227(c)(5) provides a private right of action to those who have “received more than one telephone call within any 12–month period by or on behalf of the same entity in violation of the regulations prescribed under [subsection (c) ].”

With respect to Plaintiff’s claim under Section 227(b)(3), Defendant noted that this section of the TCPA creates a private right of action for violations of Section 227(b)(1)(A)(iii), and that Section 227(b)(1)(A)(iii) provides that it is a violation of the TCPA “for any person … to make any call … using any automatic telephone dialing system or an artificial or prerecorded voice—to any telephone number assigned to a … cellular telephone service….” Defendant argued that this section of the TCPA only provides strict liability for those making a call, not those on whose behalf a call is allegedly made. As such, since it did not make the call at issue, it could not be liable for violating this section of the TCPA. Defendant further contended that this argument was strengthened by the fact that Section 227(c)(5) provides a private right of action for unlawful calls “by or on behalf of an entity, and that the difference in language between the two sections must be given effect.

Rejecting Plaintiff’s reliance on statements from the FCC that the TCPA creates strict on behalf of liability, and that these statements should be given Chevron deference, the court stated that “[n]ot only are the quoted statements not part of a regulation issued by the FCC, [. . .] the FCC has not actually issued a defined position on strict ‘on behalf of’ liability under § 227(b)(3). The Commission is apparently currently in the process of reconsidering the extent of such liability under subsection (b). In the Spring of 2011, the FCC released a public notice requesting comment on the issue of strict ‘on behalf of’ liability under § 227(b)(3), and this Court has not received information that a ruling has yet been issued on the matter. The United States Court of Appeals for the Fourth Circuit has asserted that Chevron deference applies to ‘final agency actions,’ but is not appropriately applied to ‘public comments or “non-final agency actions.’ The FCC quotes which [Plaintiff] cites amount to just that; agency comments not entitled to preclusive effect.”

Notwithstanding the rejection of Plaintiff’s argument that the TCPA creates strict on behalf of liability under Section 227(b)(3), the court concluded that a plaintiff may still successfully prove liability through general tort joint venture or agency liability principles because the TCPA does not specifically foreclose such liability. Specifically, the court recognized that when Congress creates a tort action, it legislates against a legal background of ordinary tort-related vicarious liability rules and consequently intends its legislation to incorporate those rules.

Unfortunately, for Plaintiff, however, she failed to create a genuine issue of material fact regarding such liability. Specifically, Plaintiff did not present sufficient evidence of Defendant’s ability to control the manner and means of the calls made on its behalf. Defendant on the other hand presented evidence, by way of an affidavit, that calls it makes directly are only placed by live agents though it purchases leads from outside vendors, and that at the time of the call, it utilized four “outside companies” to provide sales leads. These companies included the entity believed to have placed the call at issue. Defendant presented further evidence that it had little to no control over the means or manner by which these companies generated sales leads for Defendant. Further, Defendant presented evidence that after receiving complaints regarding the number from which the Call was placed, one of Defendant’s representatives tried to find out whether any of the lead generators used that number, and sent correspondence asking the lead generators if they used the number which generated the call, or if they ever called Plaintiff’s number. Based on this evidence, the court concluded that Defendant did not even have access to the records and/or the calls made by its lead generators, let alone control over the same.

These facts, coupled with evidence from Plaintiff suggesting that the lead generators also outsource lead generation for Defendant to third parties with which Defendant had no relationship strongly indicated that Defendant played a passive role in its interaction with lead generators. Because Plaintiff failed to present any evidence to suggest that Defendant had control over the means and manner by which its lead generators place calls on its behalf, summary judgment was due to be granted in Defendant’s favor.

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.

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