The FTC often jokingly refers to its Do Not Call Registry as the most popular government program ever (personally I'd vote for anything involving a tax credit or rebate.) It's no wonder. The Do Not Call registry consistently generates the greatest number of consumer complaints, and the FTC has entered into orders providing for more than $540 million in consumer restitution or disgorgement. The FTC's sister agency, the Federal Communications Commission, has similar regulatory requirements under the Telephone Consumer Protection Act (TCPA), and the FTC filed comments this week before the FCC relating to whether companies should be held liable for telemarketing calls placed on their behalf.
The FCC proceeding arises out of Do Not Call litigation the Justice Department is currently prosecuting on the FTC's behalf against DISH Network in which the court directed the parties to seek guidance from the FCC under the doctrine of primary jurisdiction. The specific question raised by the FCC is whether, under the TCPA, a seller can be liable if another entity actually places the call on its behalf. In its comments, the FTC strongly urged the FCC to find that a seller is liable for telemarketing calls made on its behalf. The FTC argued that common law principles of agency should not apply in this instance and that its own precedent suggests that a seller is responsible for all calls made by anyone acting as its representative or for its benefit. The FTC also notes that the two agencies have traditionally tried to harmonize interpretations of their two similar telemarketing regulations. The FTC concludes by noting that reaching any other conclusion could potentially open up a huge hole with regard to telemarketing enforcement. For that very same reason, among others, it seems likely that the FCC will reach the conclusion urged by the FTC.