Earlier today, two entities — the Direct Marketing Association (“DMA”) and a Coalition of Mobile Engagement Providers (“Coalition”) — filed petitions at the FCC asking the agency to stay and forbear from enforcing, or clarify, certain aspects of the “prior express written consent” requirement that went into effect yesterday for prerecorded calls to residential numbers
FCC Confirms That Sellers Can Be Liable for Telemarketer TCPA Violations
A seller who authorizes a third-party telemarketer to market the seller’s goods or services may be held vicariously liable if the telemarketer violates the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission held in a May 9 declaratory ruling.
The FCC’s ruling interprets two subsections of the TCPA. The first subsection — 47 U.S.C. § 227(b) — includes several restrictions, including a general prohibition on making calls to landline or mobile telephones using a prerecorded message without the recipient’s prior express consent. Section 227(b)(3) allows individuals or companies to bring private lawsuits “based on a violation of this subsection” or the FCC’s implementing regulations.
A separate portion of the TCPA — 47 U.S.C. § 227(c) — authorizes the FCC to set up a national Do Not Call registry, which the FCC did in coordination with the Federal Trade Commission several years ago. Section 227(c)(5) authorizes private lawsuits by individuals who receive “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the Do Not Call rules.
Last week’s declaratory ruling came in response to questions referred to the FCC by two federal courts in two separate TCPA-based lawsuits.
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