Democratic National Committee May be Vicariously Liable under TCPA for Get out the Vote Calls

In a good news/bad news scenario,  the saga continues in the Obama for America TCPA action.  The good news for the Democrats is that the plaintiff's motion to certify a class was denied today.  The bad news - and what this blog entry is really about - is that DNC Services Corporation (a/k/a the Democratic National Committee) saw its motion for summary judgment denied recently.  

In Shamblin v. Obama for America, C.A. No. 8:13-cv-2428 (M.D. Fl. Apr. 17, 2015), the plaintiff filed a putative class action concerning two unsolicited auto dialed telephone calls to her cellular telephone that left pre-recorded messages on her voicemail system indicating they  were “paid for by Obama for America”.  The plaintiff filed suit alleging violations of the TCPA and contending that “despite the prohibition of robocalls to cell phones, and the FCC’s reminder that such calls are illegal, President Obama’s principal campaign committee, defendant Obama for America, with the assistance and participation of defendant DNC Services Corporation…, called voter cell phones with both auto-dialed and pre-recorded calls urging the recipients to vote for Barack Obama in the 2012 presidential election.” Slip Op. at 2-3.  In its motion for summary judgment, DNC contended that the undisputed facts demonstrated that it did not initiate or make any autodialed calls to the plaintiff and therefore had no direct liability to the plaintiff and that it was not vicariously liable for calls that other entities made. 

In reviewing the first issue, that of direct liability for the calls, the court relied on recent FCC opinions as to what factors should be considered in determining whether or not a party “initiated” a telephone call.  The court determined that an issue of fact existed as to whether the DNC was directly involved in placing the calls, citing to evidence that demonstrated that the DNC provided voter information to Obama for America, reviewed telemarketing scripts and provided technical support.    

As to the issue of vicarious liability, the court also declined to dismiss the claims.  Parties may be held vicariously liable under federal common law agency principles for TCPA violations committed by third parties.  Again relying on recent FCC opinions, the court noted that any of the following may demonstrate a principal/agent relationship: (a) allowing access to information and systems; (b) providing access to customer information; (c) approving telemarketing scripts; or (4) knowing of TCPA violations and failing to stop such violations.  In this case, the court noted that there was evidence to suggest that DNC approved robocall scripts and controlled access to and use of the voter file.  The court (a Bush appointee) further gave no credence to the disclaimer of agency relationship found in the Voter Data Exchange Agreement between the DNC and Obama for America.