In its May 9, 2016, ruling in Siding and Insulation Co. v. Alco Vending, Inc., the Sixth Circuit rejected the application of traditional agency principles to determine whether a company was liable for faxes sent “on its behalf.” Instead, the Sixth Circuit held that the FCC’s 1995 Order, imposing liability on “the party on whose behalf a solicitation is made,” represented the FCC’s decision not to base TCPA liability for fax activity on a vicarious liability analysis. In so holding, the Sixth Circuit joins the Eleventh Circuit in adopting this analysis, and rejects the vicarious-liability analysis recently adopted by the Seventh Circuit for fax activity.
Although the primary target of the TCPA is telemarketing and commercial solicitations, certain TCPA restrictions, including prohibitions on the use of prerecorded voice messages and automatic telephone dialing systems (“ATDS”) for calls placed to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii) (hereinafter “the cell phone ban”), apply with equal force to calls made by political campaigns.
On May 12, 2016, several political organizations, American Association of Political Consultants, Inc. (“AAPC”), Democratic Party of Oregon, Inc. (“DPO”), Public Policy Polling, LLC (“PPP”), Tea Party Forward PAC (“TPF”), and Washington State Democratic Central Committee (“WSDCC”) (collectively, “Plaintiffs”), brought a First Amendment challenge to the prohibition on making unsolicited calls to wireless telephone numbers by filing a declaratory judgment action in the United States District Court for the Eastern District of North Carolina against the Attorney General of the United States. American Association of Political Consultants, Inc., et al. v. Lynch, No. 5:16-cv-00252-D (E.D.N.C. May 12, 2016).