Antitrust Law Daily Wrap Up, PRIVACY—NDIll: Verizon Wireless Could Be Vicariously Liable for Autodialed Calls Made by Third-Party Debt Collector, (Oct 19, 2012)

By Thomas Long, J.D.

An individual could go forward with claims that Verizon Wireless violated the Telephone Consumer Protection Act (TCPA) by engaging a debt collector (“Vantage”) to make automated phone calls to the individual’s cell phone in an attempt to collect a debt allegedly owed to Verizon, the federal district court in Chicago has held (Martin v. Cellco Partnership, October 18, 2012, Guzman, R.). Verizon could be vicariously liable for the calls.

The Federal Communications Commission has ruled that a creditor is responsible for calls made on its behalf. In In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶ 10 (Jan. 4, 2008), the FCC stated that “a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules.” Pursuant to this order, calls placed by a third party debt collector on behalf of the creditor are treated as if the creditor had placed the calls.

In the court’s view, the FCC’s 2008 order appeared to impose a strict liability standard on creditors who farm debts out to third-party collectors. Although Verizon contended that the order did not address the issue of vicariously liability in the context of this matter, the court said that it could discern no reason why the order was inapplicable. The paragraph of the order on liability addresses the concept of prior express consent and states: “To ensure that creditors and debt collectors call only those customers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.”

Although, at this stage of the litigation, the court could not definitively state that Verizon was liable, it declined to dismiss the TCPA claims against Verizon,

The case is No. 12 C 5147.

Nicholas M. Martin (pro se). Hal R. Morris (Arnstein & Lehr, LLP) for Cellco Partnership.

Cases: Privacy IllinoisNews