Two recently decided cases serve as a reminder of the reach of the TCPA on the one hand and its limitations on the other.
VICARIOUS LIABILITY IS ALIVE AND WELL UNDER THE TCPA
The first of these cases, Harrington v. Roundpoint Mortgage Servicing Corp., serves as a reminder that the notion of vicarious liability for calls made by third parties is alive and well under the TCPA. See Harrington v. Roundpoint Mortgage Servicing Corp. 2:15-cv-322-FtM-38MRM (M.D. Fl. Feb. 18, 2016). In Harrington, the plaintiff alleged that calls made by the mortgage servicer to collect past due mortgage payments violated the TCPA because they were made without his prior express consent to his cellular phone. The plaintiff contended that because the mortgage servicer made those calls on behalf of the creditor, the creditor was also liable for those calls. The creditor moved to dismiss. Relying in part on dicta from the Eleventh Circuit’s decision in Mais v. Gulf Coast Collection Bureau, 768 F. 3d 110, 119 (11th Cir. 2014) (stating that the 2008 FCC Ruling has the force of law), the court deferred to the 2008 FCC Ruling which provides that “a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd 559, 565 (2008). The court therefore concluded based upon the FCC Ruling and existing case law that the creditor may be held vicariously liable for the calls made by its mortgage servicer. Going further, the court also ruled that the creditor may also be directly liable for the same calls, again relying upon the FCC 2008 Ruling which states that “all calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” Id. The court therefore denied the motion to dismiss.
TECHNOLOGY PROVIDERS ARE NOT LIABLE UNDER THE TCPA FOR THE USE OF THEIR TECHNOLOGY
Meanwhile, a Michigan another court also recently addressed the boundaries of the TCPA. This time, the consumer sought to hold LiveVox, a provider of automated dialer software, liable for calls made using its software. In Selou v. Integrity Solution Services, the court granted LiveVox’s motion to dismiss a TCPA action brought against it. Selou v. Integrity Solution Services, Case No. 15-1097 (E.D. Mich. Feb. 16, 2016). In its complaint, the consumer alleged that the debt collector used LiveVox’s software to make calls and that LiveVox provided technology to enable others to engage in their dialing campaigns, it was liable under the TCPA for those calls to the extent they violated the TCPA. LiveVox filed a motion to dismiss asserting it functions as a common carrier with no liability because it only provides technological services through which its customers can make calls.
As identified by the court, the issue was whether the utilization of LiveVox’s technology can render it liable under the TCPA. In granting LiveVox’s motion to dismiss, the court first noted that the legislative history of the TCPA indicates that Congress only intended for the statute to apply “to the persons initiating the telephone call or sending the message and … not the common carrier or other entity that transmits the call or message and the is not the originator or controller of the content of the call or message.” S. Rep. No. 102-178 (1991). The court then concluded that based upon the case law and the July 2015 FCC Ruling, LiveVox is not considered the maker or initiator of the calls. See In the matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7978-7984 (July 10, 2015) (stating that entities that merley make technology vailable are not the makers of calls and do not have liability under the TCPA). Moreover, the court was also dismissive of any theory of vicarious liability noting that the complaint did not allege facts that suggested that LiveVox manifested asset for the debt collectors to act on LiveVox’s behalf or subject to its control.