In Thomas v. Taco Bell Corp., — F.Supp.2d —-, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case.
Section 227(b)(1)(A)(iii) of the TCPA provides as follows: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call…. 47 U.S.C. § 227(b)(1)(A)(iii). The plain language of the TCPA assigns civil liability to the party who “makes” a call. The statute is, however, silent as to the issue of vicarious liability. The Supreme Court has held that, when Congress creates a tort action, “it legislates against a legal background of ordinary tort-related vicarious liability rules and consequently intends its legislation to incorporate those rules.” Meyer v. Holley, 537 U .S. 280, 285 (2003). Absent a clear expression of Congressional intent to apply another standard, the Court must presume that Congress intended to apply the traditional standards of vicarious liability with which it is presumed to be familiar, including the alter ego and agency doctrines.FN3 [FN3. Other district courts have also found traditional theories of vicarious liability to be implicitly included in tort actions authorized under the TCPA. See, e.g., Accounting Outsourcing, LLC v. Verizon Wireless Pers. Commc’ns, L.P., 329 F.Supp.2d 789, 8096 (M.D.La.2004).] ¶ Ms. Thomas argues that the TCPA employs a broader standard of liability: that a party can be held liable if a call or text message is made on its “behalf,” that is, if a party receives benefit from the text message. The Court disagrees. The language Ms. Thomas draws upon in support of her assertion is found in a different section of the TCPA, relating to penalties for multiple calls, Section 227(c)(5), and is insufficiently related to the section at issue in this action, Section 227(b)(1)(A)(iii), to inform the Court’s reading of the section under which Ms. Thomas is suing Taco Bell. Moreover, Ms. Thomas’ reading of the section under which she sues is not persuasive because Congress inserted this phrase into Section 227(c)(5), but left it out of Section 227(b)(1)(A)(iii), each of which creates a different, unrelated claim under the TCPA. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972))). Ms. Thomas has not provided evidence to overcome the presumption that the traditional standard of vicarious liability applies. This Court concludes, therefore, that a party can be held liable under Section 227(b)(1)(A)(iii) directly if it personally “makes” a call in the method proscribed by the statute, or vicariously, such as, if it was in an agency relationship with the party that sent the text message. ¶ Direct liability is inapplicable here as the parties do not dispute that the actual sender of the text was Ipsh, a separate provider of text-message based services retained by ESW. Therefore, Ms. Thomas must be seeking to hold Taco Bell vicariously liable for the actions of the Association and its two agents, ESW and Ipsh. To succeed on this vicarious liability theory, Ms. Thomas must demonstrate that these entities acted as an agent of Taco Bell: that Taco Bell controlled or had the right to control them and, more specifically, the manner and means of the text message campaign they conducted.FN4 See United States v. Bonds, 608 F.3d 495, 506 (9th Cir.2010). “Agency means more than mere passive permission; it involves request, instruction, or command.” Klee v. United States, 53 F.2d 58, 61 (9th Cir.1931). Ms. Thomas, however, has failed to meet her burden in this regard. Specifically, Ms. Thomas did not present any evidence to the Court that Taco Bell directed or supervised the manner and means of the text message campaign conducted by the Association and its two agents, ESW and Ipsh. She presented no evidence to the Court that Taco Bell created or developed the text message. Nor did she present any evidence to the Court that Taco Bell played any role in the decision to distribute the message by way of a blast text. All of this control over the manner and means of the text message campaign was exercised by the Association, ESW, and Ipsh, and Ms. Thomas has not presented any evidence to the Court demonstrating that Taco Bell controlled the actions of these entities with respect to the campaign. Taco Bell, simply put, had nothing to do with it.