FCC Ruling on Calling Liability – DISH Network Held Accountable for Third Party Actions

The FCC recently ruled on a case involving DISH Network.  The outcome should cause organizations to pause and evaluate their calling strategies to determine whether they, and third party providers, are in compliance.

Philip J. Charvat filed a complaint against DISH Network stating that companies stating to be DISH Network were repeatedly calling him, in violation of the Do Not Call laws.  These companies were independent third party retailers Marrick Dish Co., DISH TV Now, and Marketing Guru.  Instead of simply filing a complaint against each one of these parties he filed against Echostar, the owner of the DISH Network.  Simultaneously the US government filed a complaint against the company for violations of the abandoned call, pre-recorded calls, and Do Not Call legislation.

DISH Network did not think it should be liable for the actions of third parties.  They felt that since the people calling were independent of DISH their actions should be their responsibility alone.  The FCC ruled otherwise using ambiguity within the TCPA to back their opinion.  The FCC determined that “a seller is not directly liable for a violation of the TCPA unless it initiates a call, but may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer.” “…while a seller does not generally initiate calls made through a third-party telemarketer, it nonetheless may be vicariously liable under federal common law agency-related principles for violations of either section 227(b) or 227(c) committed by telemarketers that initiate calls to market its products or services.”

There are several methods used to determine if the main corporation (maker/provider of the products or services) holds liability.  This includes:

  • The seller giving the third party access to information that they would not normally have.  This is data, methods, contact lists etc. that are typically the sellers exclusive property.
  • The seller approving, reviewing, or contributing to the third parties telemarketing script.
  • The seller knew that the third parties actions were in violation of the TCPA.
  • Ability for the outside party to enter data directly into the sellers computer systems or data base.

From a business perspective the ruling makes sense.  If the third party acts like you, talks like you, looks like you, uses your data, and has access to your systems – they are you, even if they operate under a different legal entity.  Not claiming liability would be similar to saying you have no liability for a temp that works in your office since they are not a permanent hire.  Telemarketing can be an effective way to market to existing and prospective customers.  Make sure you stay up to date on current legislation and follow the guidelines so that you can reach new customers without getting your hand slapped.