The FCC’s declaratory ruling re TCPA vicarious liability – one year later, trends and takeaways

by DLA Piper

A year ago, we reported on the FCC’s Declaratory Ruling that addressed the issue of whether parties who did not actually place telemarketing robocalls could be either directly or vicariously liable for calls made on their behalf in violation of the Telephone Consumer Protection Act (TCPA). 

How has the Declaratory Ruling been applied since then? Seeking to understand significant trends and identify takeaways for businesses aiming to avoid vicarious liability exposure risk, we took  a careful look at 12 federal court decisions issued since then. 

The Declaratory Ruling

In its Ruling, the FCC clarified that sellers who did not actually place calls cannot be directly liable under Sections 227(b) and (c) of the Act and could only be held vicariously liable under these sections if federal common law principles of agency apply.  Vicarious liability, according to the FCC, may only derive from formal agency, apparent authority or ratification. 

Notably, the FCC explicitly rejected arguments seeking to hold retailers vicariously liable simply because calls were made for the benefit of a retailer where agency principles would not impose liability.  Merely “hav[ing] some role, however minor, in the causal chain that results in the making of a telephone call” – without more – will not subject a retailer to liability for the acts of third parties.

How the Declaratory Ruling has been applied in 2014

With the Declaratory Ruling now more than a year old, and in the context of various ongoing matters we are litigating nationally, we took a careful look at federal court decisions issued in its wake (focusing on cases decided up through July 2014) to assess the impact of the Declaratory Ruling. 

Our review considered 12 court opinions issued this year that substantively considered the issue of TCPA vicarious liability.  (All but one of the twelve were district court opinions; the only circuit court of appeals decision – Thomas v. Taco Bell Corp., No. 12-56458 (9th Cir. July 2, 2014) – is not a published opinion, “is not precedent,” and its analysis of the issue is, therefore, somewhat limited.)

Our findings

Surprisingly, three of the opinions (all decided in the last three months) did not discuss the FCC’s Declaratory Ruling at all.  Even more disturbing, two of these decisions concluded that an entity could be held vicariously liable for calls made by a third party “on its behalf,” a standard that was considered but   rejected by the FCC in its Declaratory Ruling.  See, e.g., Brodsky v. HumanaDental Ins. Co., No. 1:10-cv-03233 (N.D. Ill. June 12, 2014) (denying defendant’s motion to dismiss vicarious liability claim for violations of the TCPA’s “junk fax” provisions).

In the third case (McCabe v. Caribbean Cruise Line, Inc., No. 13-CV-6131 (E.D.N.Y. July 3, 2014)), the district court denied the defendants’ motion to dismiss the vicarious liability claims even though the Court found that the plaintiff’s allegations were “sparse.”  Specifically, the plaintiff’s sole basis for alleging that the seller was vicariously liable for a call made by a vendor was that it was “made pursuant to a contract.”  (Every other district court opinion we reviewed did address the FCC’s Ruling and, for the most part, applied the Ruling as precedent.)

Nine of the opinions concerned motions to dismiss or motions for summary judgment.  The principal takeaway from these cases is that the courts’ consideration of vicarious liability (including issues of agency, apparent authority and ratification) post-Ruling is very fact specific. 

As described below, in the decisions to date courts have allowed plaintiffs to assert vicarious liability theories with fairly conclusory allegations.  As a result, dismissal of vicarious liability claims at the pleading stage (where allegations must be accepted as true for purposes of the motion, whereas at the summary judgment stage at least you can test the veracity of the allegations and affiants) is thus far proving to be very difficult.  Moreover, as noted below, dismissal of such claims even at the summary judgment stage is also proving to be difficult when there are any disputed facts regarding the scope of a service provider’s engagement or its authorization. 

Motions to dismiss

Thus far this year, only one court has signaled it would potentially grant a defendant’s motion to dismiss a vicarious liability claim.  We say “potentially” because the order on the defendants’ motion to dismiss was entered by a magistrate judge who has recommended that the defendants’ motion to dismiss the vicarious liability claim be granted.  Lucas v. Telemarketer Calling from (407) 476-5670 and Other Telephone Numbers, No. 1:12-cv-630 (S.D. Ohio Mar. 20, 2014).  (In early August, the district court judge granted the plaintiff’s motion to stay the Court’s ruling on the motion to dismiss pending the FCC’s consideration of a petition the plaintiff had filed  seeking a further FCC ruling regarding the scope of vicarious liability.)  Moreover, the court’s rationale for recommending dismissal may not recur:  the court noted that the plaintiff had not alleged “any form of agency relationship” and did not “plead a theory of apparent authority, or ratification.” 

In another case, Kristensen v. Credit Payment Servs., No. 2:12-cv000528 (D. Nev. Mar. 26, 2014), the district court denied a motion to dismiss, finding that the plaintiff had sufficiently plead “a plausible agency relationship based on actual authority…arising through contractual relationships,” and other seemingly conclusory allegations of apparent authority and ratification.

Summary judgment

This year, two courts have granted defendants’ summary judgment motions.  Interestingly, the two courts took different approaches regarding the import of the Declaratory Ruling.  One concluded that the Declaratory Ruling “applies” and that its reasoning was “controlling” and, therefore, analyzed the plaintiff’s claim under agency, apparent authority and ratification theories.  Avio, Inc. v. Alfoccino, Inc., No. 2:10-cv-10221 (E.D. Mich. May 9, 2014) (applying the Declaratory Ruling in a “junk fax” context).  

The other court cited the Declaratory Ruling for its determination that TCPA vicarious liability incorporates federal common law agency principles, but then looked to case law, not the Declaratory Ruling, for those principles.  Keating v. Peterson’s Nelnet, LLC, No. 1:11 CV 1775 (N.D. Ohio May 12, 2014).  This court examined whether the defendant “controlled or had the right to control” the alleged agent but did not consider apparent authority or ratification theories. 

Five courts denied motions for summary judgment on vicarious liability issues.  Some of these motions were brought by plaintiffs, others by defendants; and some were cross motions for summary judgment.  These four examples are drawn from these five cases:

  • Legg v. Voice Media Grp., Inc., No. 13-62044-CIV (S.D. Fla. May 16, 2014) (denying both plaintiff’s and defendant’s motions, noting “summary judgment on vicarious liability is appropriate only in cases where evidence of the relationship is clear and unequivocal”)
  • The Siding & Insulation Co. v. Combined Ins. Grp., Ltd, No. 1:11CV1062 (N.D. Ohio Apr. 17, 2014) (denying plaintiff’s motion for summary judgment because “a disputed issue of material fact exists on the question of [defendant’s] apparent authority”)
  • Creative Montessori Learning Ctr. v. Ashford Gear, LLC, No. 1:09-cv-03963 (N.D. Ill. Mar. 03, 2014) (denying plaintiff’s motion “because a genuine issue remains as to what, if any, authorization defendant ever gave” the alleged agent)
  • Imhoff Inv., LLC v. SamMichaels, Inc., No. 10-10996 (E.D. Mich. Jan. 15, 2014) (denying plaintiff’s motion because the “issue of agency turns on the control exercised” by the alleged principal “which cannot be determined as a matter of law”)

In all five cases, the motions were denied because each court concluded there was a genuine issue of material fact regarding some aspect of the alleged agency or apparent authority.    

Future developments

The law of TCPA vicarious liability will continue to develop, not only because courts will continue to grapple with the implications of the Declaratory Ruling, but also because but also because the FCC is poised to issue further guidance.  Earlier this month, the FCC began seeking public comment on a pending petition that asks the FCC to further expand the parameters of TCPA vicarious liability.  Specifically, the petition asks

the Commission to clarify that a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates the TCPA.


Public Notice, Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling Filed by Vincent Lucas, CG Docket No. 02-278 (Released July 9, 2014).   The comment period for this petition closes on August 25, 2014.  One federal district court has already urged “THE FCC TO ACT PROMPTLY UPON THE CONCLUSION OF THE COMMENT PERIOD, AS THIS ISSUE HAS WIDESPREAD IMPLICATIONS.”  (Emphasis in original)

When the FCC initially issued its Declaratory Ruling, we recommended that both retailers and service providers review their practices as well as contractual terms and conditions (particularly indemnification clauses) to ensure compliance with the TCPA.  The post-Ruling litigation results – which to date illustrate that vicarious liability claims are fact intensive, and therefore are not easily susceptible to dispositive motions – and the potential for further FCC action in the future reinforce the need for such a recurring assessment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.