In Harrington v. Roundpoint Mortgage Servicing Corporation, 2016 WL 659331, at *2-4 (M.D.Fla., 2016), the District Court denied a creditor’s motion to dismiss a TCPA action, disagreeing with the argument that the TCPA prohibits the imposition of vicarious liability.
According to Plaintiff, RoundPoint placed nonemergency calls to his cell phone numbers using an automated dialer or a prerecorded voice without his prior express consent. (Doc. #37 at ¶ 52). Because RoundPoint made such calls on behalf of MultiBank, Plaintiff alleges that MultiBank violated the TCPA in the same manner. (Doc. #37 at ¶¶ 53-54). Defendants move to dismiss this claim against MultiBank, arguing MultiBank did not actually make the calls at issue, and it cannot be vicariously liable for RoundPoint’s conduct under the TCPA. (Doc. #38 at 10-12). Plaintiff counters that MultiBank is subject to both direct and vicarious liability. (Doc. #39 at 2-9). According to Defendants, § 227(b)(1)(A)(iii), by its terms, assigns liability only on the persons who actually ‘make‘ the offending calls. (Doc. #38 at 10-11). Defendants arrive at this statutory interpretation by comparing § 227(b)(1)(A) with § 227(c)(5), a sister subsection of the TCPA. (Doc. #38 at 11). As noted above, § 227(b)(1)(A) renders it unlawful to ‘make‘ a nonemergency call using an automatic telephone dialing system or a prerecorded voice to a cellular telephone service without the called party’s consent. 47 U.S.C. § 227(b)(1)(A). In contrast, § 227(c)(5), which concerns calls to persons on the National Do-Not-Call Registry, imposes liability for multiple calls made ‘by or on behalf of‘ a person. Id.§ 227(c)(5) (emphasis added).2 Defendants aver the differing language in each provision indicates that Congress intended to allow ‘on behalf of‘ liability for violations of § 227(c)(5), but not the subsection at issue here. (Doc. #38 at 11).. . .Given the Eleventh Circuit’s strong language, this Court will not overlook the weight that the 2008 FCC Ruling bears on this case. Indeed, numerous courts have held that § 227(b)(1)(A) imposes liability upon a showing of vicarious liability. See Martin v. Glob. Mktg. Research Servs., Inc., No. 6:14-cv-1290-Orl-31KRS, 2015 WL 6083537, at *6 n.6 (M.D. Fla. Oct. 15, 2015) (‘A number of courts have indicated that theories of vicarious liability, at least in certain circumstances, may be viable under the TCPA.‘); Shamblin v. Obama for Am., No. 8:13-cv-2428-T-33TBM, 2015 WL 1754628, at *5 (M.D. Fla. Apr. 17, 2015) (denying summary judgment on the issue of vicarious liability for TCPA violations); see also Maryland v. Universal Elections, Inc., 729 F.3d 370, 378 (4th Cir. 2013) (rejecting the appellants’ argument that they could not be liable under the TCPA because they did not actually place any of the offending calls, in part, because ‘[s]uch a narrow reading would undermine the purpose of the Act and would allow the actual violators to escape liability.‘); Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 135 (E.D.N.Y. 2015) (rejecting the defendant’s argument that § 227(b) does not permit vicarious liability under common-law principles); Melito v. Am. Eagle Outfitters, Inc., No. 14-cv-02440, 2015 WL 7736547, at *5 n.11 (S.D.N.Y. Nov. 30, 2015) (stating the court ‘would be inclined to hold that there can be vicarious liability under the TCPA‘). Following this overwhelming precedent, the Court concludes that MultiBank may be held vicariously liable under the TCPA. To the extent Plaintiff further argues that MultiBank can be directly liable under the TCPA, the Court defers to the 2008 FCC Ruling. Again, the FCC 2008 Ruling states, ‘[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.‘ 2008 FCC Ruling at 565. The FCC has ruled, in essence, that a creditor is placed ‘in the shoes‘ of the caller for purposes of liability under the TCPA. See Hartley-Culp v. Green Tree Servicing, LLC, 52 F. Supp. 3d 700, 703 (M.D. Pa. 2014). Thus, the TCPA can impose liability directly on any person or entity on whose behalf a third party places a call in violation of § 227(b)(1)(A). At this early stage of the case, the Court will not foreclose Plaintiff from pursuing either direct or vicarious liability.