In a ruling issued late last week, the Ninth Circuit held that a marketing consultant that hired a firm to send text messages for a third party could also be held vicariously liable for violations of the Telephone Consumer Protection Act (TCPA).  The marketing consultant acknowledged that Federal Communications Commission orders have established that a telemarketer can be held liable under the TCPA for calls made by agents they have hired to make the calls, but argued that vicarious liability should not extend to a marketing consultant that serves a middle-man role.  The Ninth Circuit disagreed, holding that it should apply “ordinary tort-related vicarious liability rules,” and saying that “[i]t makes little sense to hold the merchant vicariously liable for a campaign he entrusts to an advertising professional, unless that professional is equally accountable for any resulting TCPA violation.”

The Campbell-Ewald Company had been hired by the United States Navy to distribute text messages to targeted individuals as part of a multimedia recruiting campaign.  The plaintiff alleged that one of the text messages had been sent to him despite the fact that he had not consented to receive the message and despite the Navy’s testimony that messages were intended to be sent to only persons who had consented to receive them.  The TCPA prohibits use of autodialing equipment to send calls to wireless phones without the prior express consent of the called party.  Both the FCC and the courts have held that text messages are the equivalent of calls for purposes of the TCPA.

The court also rejected Campbell-Ewald’s argument that it should be granted some form of immunity because the calls were made on behalf of the Navy.

The Ninth Circuit’s ruling overturns a summary judgment order issued by the district court in favor of Campbell-Ewald and remanded the case to the district court for further proceedings.

Gomez v. Campbell-Ewald Co., No. 13-55486 (9th Cir. Sept. 19, 2014).