Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?In 2013, the FCC stated that “while a seller does not generally ‘initiate’ calls made through third-party telemarketers within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency . . .” In re Joint Petition filed by DISH Network, LLC, 28 FCC Rcd 6574, ¶ 1 (2013) (“Dish Network Order”). And in 2014, the FCC stated that the DISH Network Order “did not address or alter the treatment of facsimile transmissions under the TCPA or the Commission’s implementing regulations,” and “under the plain text of [the FCC’s definition of sender] – and unlike the robo-call and do-not-call contexts – direct liability for sending an unsolicited facsimile advertisement attaches to the entity (defined as the ‘sender’) whose goods or services are being promoted.” Letter from Laurence N. Bourne, Counsel, Federal Communications Commission to John Ley, Clerk… Read full this story
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