FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,042
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party retailers that allegedly violate section 227(bX)(1)(B).'2 To support its request, DISH relies
exclusively on the private right of action language provided in section 227(b)(3) to redress violations of
the prerecorded call restrictions." This section allows a person or entity to bring an action in state court
to enjoin the violation and recover monetary damages." If the Commission determines that liability for
unlawful prerecorded calls made by third-party retailers attaches to a company contracting with the
retailers, DISH argues that such liability should be either based on the call being made at the "direction
and request" of the company at issue's or based on federal common law principles of agency.'"
In its petition, Charvat requests that the Commission clarify that a company on whose behalf a
telephone solicitation is made bears the responsibility for any TCPA rule violation incurred by the party
acting on the company's behalf.'7 To support his request, Charvat relies on the private right of action
language provided in section 227(cX5) and applies it to violations of prerecorded call restrictions." This
section allows a person who has received more than one call within a 12-month period "by or on behalf
of" the same entity in violation of the TCPA's do-not-call provisions to bring an action in state court."
Charvat suggests that the plain meaning of the phrase "on behalf of" should determine whether third-party
retailers can be held liable for unlawful calls.20 If the Commission determines liability for unlawful
prerecorded calls made by third-party retailers does not attach to a company contracting with the retailers,
Charvat argues that such liability should be determined based on federal common law principles of
agency and joint venture law.21
Finally, the United States and the States ask the Commission to declare that an entity on whose
behalf a third party solicits the sale of the entity's goods or services is liable for TCPA violations
committed by that third party.2 To bolster its request, the United States and the States rely on the actions
by states language provided in section 227(f). This section permits a state's attorney general to bring an
action against any person who has engaged or is engaging in a pattern or practice of telephone calls that
violate the TCPA." To resolve assignment of liability, the States also rely on the "on behalf of' language
in section 227(c)(5), the do-not-call private right of action provision, and apply it to violations of
prerecorded call restrictions."4
'2 Joint Petition at 10-18; DISH Petition at 4-9.
' DISH Petition at 4-9.
'4 47 U.S.C. 227(b)(3).
" DISH Petition at 13-15.
'6 Joint Petition at 16-17; DISH Petition at 15-16.
7 Charvat Petition at 8-10.
is Id. at 8-13.
"' 47 U.S.C. 227(c)5).
20 Charvat Petition at 12-13.
'' Id. at 14-16.
22 Joint Petition at 20-21, 24-26.
23 Id. at 23-26.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/214/: accessed January 24, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.