The United States District Court for the District of New Jersey recently held a roofing company liable for a third-party advertiser’s violations of the Telephone Consumer Protection Act (“TCPA”) to the tune of $22,405,000.00. The TCPA class action, which has been pending for over three years, concerns fax advertisements sent by Business to Business Solutions (“B2B”) on behalf of David/Randall Associates, Inc. (“DRA”). The Court held DRA vicariously liable for B2B’s violations of the TCPA despite the fact that DRA “never possessed a list of the intended fax recipients, nor requested such list from B2B.” Although the Court has entered judgment against DRA, claims concerning the personal liability of DRA’s principal are still pending.

Can I be liable under the TCPA even if I don’t send any faxes?

Vicarious Liability for Unsolicited Fax Advertisements under the TCPA

Even though DRA did not send any of the fax advertisements at issue in the class action, the Court nevertheless imposed judgment against DRA in the amount of $22,405,000.00. The Court reached this decision because “the disputed facsimiles solely concern [DRA’s] roofing services, and nowhere advertise the goods, services, or products of any other individual or entity.” The Court relied on an amicus letter filed by the Federal Communications Commission in another matter which stated that a defendant can be held liable under the TCPA even if “a defendant [transmitted] no facsimile to the plaintiff, but whose independent contractor did . . . .”

The Court also rejected the DRA’s prior business relationship defense. The Court noted that under the TCPA, this defense exists only where a defendant “possessed both an established business relationship with [DRA] and a sufficiently publicized facsimile number.” The Court went on to reject application of the defense in this instance due to evidentiary deficiencies.

Protect Yourself

We have previously blogged about the Ninth Circuit’s standard for finding vicarious liability under the TCPA. In this case, DRA has found itself vicariously liable for the TCPA violations of its marketing agent. In light of this and similar rulings, it is important that companies remain vigilant in overseeing the policies of their third-party advertisers.