TCPA Case Dismissed Because Agents Lacked Authority

Under the TCPA, liability attaches to the party who makes the call.  Easy enough.  But it goes further than that. The FCC has interpreted the TCPA to reach sellers who can be held liable for the acts of “a third-party marketer . . . under federal common law principles of agency.”  In re Joint Petition Filed by Dish Network, LLC, et al., 28 F.C.C. Rcd. 6574 at par. 1 (2013).  This agency principle includes “apparent authority and ratification.”  Id., par. 28.

Yet this expansive liability is not limitless, as plaintiff Craig Cunningham recently learned after dismissal of his claims against a health insurance company in Tennessee.  Cunningham v. Health Plan Intermediaries Holdings, LLC, No. 3:18-cv-00518, 2021 U.S. Dist. LEXIS 91978, *3 (M.D. Tenn. May 14, 2021).  Mr. Cunningham alleged in conclusory fashion that the company’s “third-party agents” called him to “sell him health insurance.”

The Court granted the health insurance company’s motion to dismiss.  First, Mr. Cunningham did not sufficiently allege that the insurance company “took steps to physically initiate a call.”  So there was no direct liability.  Second, the Court rejected Mr. Cunningham’s agency arguments, considering various common-law categories of agency:

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National Law Review, Volumess XI, Number 138