Before the 

FEDERAL COMMUNICATIONS COMMISSION 

Washington, D.C. 20554 

In the Matter of 

Petitions Seeking Rulings on 

Certain Definitions under the Telephone 

Consumer Protection Act of 1991 and its 

Related Rules 

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) 

) CG Docket No. 11-50 

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) 

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COMMENT OF THE 

FEDERAL TRADE COMMISSION

 The Federal Trade Commission appreciates this opportunity to provide 

comments in response to the Public Notice (DA 11-594) released on April 4, 2011. That 

Public Notice requested comments on two questions: 

1. “Under the TCPA, does a call placed by an entity that markets the seller’s goods 

or services qualify as a call made on behalf of, and initiated by, the seller, even if 

the seller does not make the telephone call (i.e., physically place the call)?” 

2. “What should determine whether a telemarketing call is made ‘on behalf of’ a 

seller, thus triggering liability for the seller under the TCPA? Should federal 

common law agency principles apply? What, if any, other principles could be 

used to define ‘on behalf of’ liability for a seller under the TCPA?”1

 The Federal Trade Commission (“FTC”)2 urges the Federal Communications 

Commission (“FCC”) to hold that: (1) under the Telephone Consumer Protection Act 

(“TCPA”), a call placed by an entity that markets the seller’s goods or services does, 

indeed, qualify as a call made on behalf of, and initiated by, the seller even if the seller 

did not place the call; and (2) the plain meaning of “on behalf of” should be employed 

when determining whether a seller should be held liable for a marketer’s violative 

 

1 The Public Notice also states: “Additionally, we solicit comments addressing the applicability of 

federal agency law and federal joint venture law to the TCPA liability questions presented herein.” 

2 One of the petitions that led to the FCC’s initiation of this proceeding arose from a Telemarketing Sales 

Rule enforcement action against DISH Network that is being litigated by the United States Department of 

Justice (“DOJ”) on behalf of the FTC. United States and the States of California, Illinois, North Carolina and 

Ohio v. DISH Network, LLC, Case No. 09-cv-3073, Order (C.D. Ill. order of February 4, 2011) (directing the 

parties to seek FCC guidance under the doctrine of primary jurisdiction). That case involves tens of 

thousands of complaints that consumers filed with the FTC, evidence of DISH Network and its marketers 

calling consumers whose telephone numbers were on the Do Not Call Registry, and evidence of DISH 

Network marketers improperly using pre-recorded telemarketing messages. 
 2

telephone calls made to market or sell the seller’s goods or services. The FTC also urges 

the FCC to rule that the TCPA creates a statutory cause of action that imposes liability 

on a seller or a marketer for its violations, unless the seller or marketer can show that it 

satisfies the requirements set forth in the safe harbor. As described below, protecting 

consumers’ privacy demands a uniform and comprehensive interpretation of “on behalf 

of.” The plain meaning of the words “on behalf of,” as well as the regulatory 

framework of the TCPA itself support this interpretation. Similarly, Congress’s intent 

in passing the TCPA strongly militates against any attempt to import federal agency 

law and joint-venture law into the TCPA and its related rules. A more restrictive 

interpretation could jeopardize Congress’s privacy-protection goals. 

Background 

 The FTC is an independent administrative agency charged with promoting 

consumer protection, competition, and the efficient functioning of the marketplace. Our 

law enforcement authority in the consumer protection arena is primarily based on 

Section 5 of the Federal Trade Commission Act (“FTC Act”), which prohibits “unfair or 

deceptive acts or practices in or affecting commerce,”3 as well as various statutes and 

rules, including the Telemarketing Sales Rule (“TSR”).4 As illustrated by the FTC’s case 

against DISH Network,5 enforcing the Do Not Call provisions of the TSR is one of the 

FTC’s core consumer-protection responsibilities in the arena of safeguarding 

Americans’ privacy. 

 In 1991, Congress found that telemarketing had grown substantially and that 

calls seeking to sell products and services “can be an intrusive invasion of privacy.”6 

Congress further found that “[o]ver half the States now have statutes restricting various 

uses of the telephone for marketing, but telemarketers can evade their prohibitions 

through interstate operations.”7 A Congressional committee recognized that, “federal 

legislation [was] needed to both relieve states of a portion of their regulatory burden 

and protect legitimate telemarketers from having to meet multiple legal standards.”8 

Congress accordingly enacted the TCPA to give the FCC the authority to regulate 

interstate and intrastate telemarketing.9 Pursuant to the TCPA, the FCC in 1992 

 

3 15 U.S.C. § 45(a). 

4 16 CFR Part 310. 

5 See fn.2, supra.

6 Pub. L. No. 102-243, §§ 2(4), 2(5), 105 Stat. 2394 (1991). See 47 U.S.C. § 227 notes. 

7 Id.

8 H.R. Rep. 102-317 (1991), at 10. 

9 See generally 47 U.S.C. § 227. Beyond empowering the FCC and the state Attorneys General to enforce 

the statute, see 47 U.S.C. § 227(f)(1), (3), the TCPA creates a private right of action. This right of action 

allows individuals to seek injunctive relief and damages if they have “received more than one telephone 

footnote continues ... 
 3

promulgated rules, including the “entity-specific” Do Not Call Rule, that allows 

consumers to tell particular sellers and their telemarketers to stop calling.10 

 To further address issues related to deceptive and abusive telemarketing, 

Congress passed the Telemarketing Consumer Fraud and Abuse Prevention Act11 (the 

“Telemarketing Act”) in 1994. In the Telemarketing Act, Congress authorized the FTC 

to adopt rules “prohibiting ... abusive telemarketing acts or practices,” including any 

“pattern of unsolicited telephone calls which the reasonable consumer would consider 

coercive or abusive of such consumer’s right to privacy.”12 Pursuant to this authority, 

the FTC promulgated the TSR in 1995. The TSR, as originally promulgated, also 

contained an entity-specific Do Not Call Rule. 

 In 2000, the FTC began a formal proceeding to review the effectiveness of the 

TSR. Consumer comments submitted during that review overwhelmingly sounded the 

theme that the entity-specific Do Not Call regime was inadequate to protect privacy and 

stop the intrusion of unwanted sales calls.13 Accordingly, the FTC amended the TSR in 

2003 to create a nationwide Do Not Call Rule that allowed consumers to list their 

personal telephone numbers on the national Do Not Call Registry and required sellers 

and telemarketers to remove these registered numbers from their call lists. 

 At about the same time, the FCC undertook to amend its TCPA-related rules to 

better harmonize them with the FTC’s national Do Not Call Rule and to utilize the new 

Registry.14 The FTC and the FCC’s Do Not Call Rules prohibit sellers and marketers 

 

 ... continued footnote 

call within any 12-month period by or on behalf of the same entity in violation of the regulations 

prescribed under this subsection.” 47 U.S.C. § 227(c)(5). See also 47 U.S.C. § 227(b)(3) (creating private 

right of action for violation of restrictions on use of automated telephone equipment). 

10 47 CFR § 64.1200. 

11 15 U.S.C. §§ 6101-6108. 

12 15 U.S.C. §§ 6102(a)(1), (a)(3)(A). 

13 Consumer comments criticized the then-existing rule’s ineffectiveness because: the entity-specific 

approach required them to repeat their “do-not-call” request with each and every telemarketer that 

called; telemarketers routinely ignored their repeated requests to be placed on a “do-not-call” list; they 

had no way to verify whether their names had been taken off a company’s call list; and attempting to 

vindicate privacy rights through the TCPA’s private right of action was a complex, time consuming 

process that placed an excessive evidentiary burden on the consumer to keep detailed lists of who called 

and too often failed to result in an enforceable judgment. 

14 Similarly, both the FTC and the FCC’s telemarketing rules prohibit the use of artificial or prerecorded 

voices to deliver telephone solicitations (“robocalls”) without the prior consent of the called party. 16 

CFR § 310.4(b)(1)(v), 47 CFR § 64.1200(a)(2). Both agencies have taken recent action to ensure that their 

approach to robocalls remains effective and consistent. See

http://www.ftc.gov/os/fedreg/2008/august/080829tsr.pdf and 

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-18A1.pdf. 
 4

from calling numbers on the Registry (or employing robocalls) unless they can 

demonstrate either that they comply with the safe-harbor provisions or that their calls 

fall within the “established business relationship” or “prior consent” exceptions. Both 

Rules impose liability on sellers and marketers who fail to fulfill those legal 

obligations.15 The Do Not Call Rules and the other complementary privacy-protecting 

provisions of both the FTC and the FCC’s regulatory regimes advance substantial 

government interests of protecting the privacy of individuals in their homes and 

protecting consumers against the risk of fraudulent and abusive solicitations.16

The FTC takes seriously its responsibility to enforce the TSR to protect consumer 

privacy and protect consumers against deceptive and unfair telemarketing practices. 

Since the National Do Not Call Registry was established in 2003, the FTC has filed 59 

law enforcement actions alleging Do Not Call violations.17 Twenty-eight of those cases 

focused exclusively on violations of the Do Not Call and related privacy protection 

provisions of the TSR (as opposed to other provisions of the TSR which prohibit, among 

other activities, abusive and deceptive acts and practices). Virtually all of the 

Commission’s TSR enforcement actions result in permanent injunctions that prohibit 

defendants’ deceptive or abusive marketing or sales practices and in some cases ban 

defendants entirely from telemarketing. Overall, the FTC’s TSR enforcement actions 

have resulted in orders providing for more than $540 million in consumer restitution or 

disgorgement of funds to the United States Treasury. In addition, through cases filed 

on its behalf by DOJ,18 the FTC has obtained civil penalty orders and equitable 

monetary relief totaling nearly $31 million since 2003. 

 

15 See 47 CFR § 64.1200(c)(2) and 16 CFR § 310.4(b)(3). See also Report to Congress Pursuant to the Do Not 

Call Implementation Act on Regulatory Coordination in Federal Telemarketing Laws at 1 (2003) (noting that the 

FTC and the FCC’s Do Not Call Rules are largely the same) (available at 

http://www.ftc.gov/os/2003/09/dnciareport.pdf). 

16 See, e.g., Mainstream Marketing Servs., Inc. v. FTC, 358 F.3d 1228, 1237 (10th Cir.), cert. denied, 534 U.S. 812 

(2004) (“The government asserts that the do-not-call regulations are justified by its interests in 

1) protecting the privacy of individuals in their homes, and 2) protecting consumers against the risk of 

fraudulent and abusive solicitation. See 68 Fed.Reg. 44144; 68 Fed.Reg. at 4635. Both of these 

justifications are undisputedly substantial governmental interests.”). 

17 The FTC has an extensive record of robust law enforcement against fraudulent and abusive 

telemarketers. Since promulgation of the original TSR in 1995, the FTC has brought more than 300 cases 

aimed at halting various telemarketing frauds. The Commission’s anti-fraud TSR enforcement has 

targeted unauthorized debiting of consumers’ financial accounts and deceptive sales of various goods 

and services (e.g., work-at-home scams, advance-fee credit frauds, bogus government grant schemes, 

sweepstakes and prize promotions). Prior to the enactment of the TSR, the FTC brought 110 

telemarketing cases pursuant to Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or 

practices in or affecting commerce.” 15 U.S.C. § 45(a). 

18 Civil penalty actions are filed by the United States Department of Justice on behalf of the FTC. In 

general, under the FTC Act, the FTC must notify the Attorney General of its intention to commence, 

defend, or intervene in any civil penalty action under the Act. 15 U.S.C. § 56(a)(1). DOJ then has 45 days, 

from the date of the receipt of notification by the Attorney General, in which to commence, defend or 

footnote continues ... 
 5

As both agencies have recognized, uniform application of the Do Not Call Rules 

is beneficial to consumers and businesses alike. Accordingly, the FTC recommends that 

the FCC ensure that its approach to telemarketing enforcement remains consistent with 

the FTC’s longstanding approach. Conformity in this regard is essential to promote key 

law enforcement goals and to effectuate Congress’s mandate to create a federal 

standard for protecting consumers’ privacy. 

Analysis

 The first question posed by the FCC’s Public Notice asks whether, under the 

TCPA, a call placed by an entity that markets the seller’s goods or services qualifies as a 

call made on behalf of, and initiated by, the seller, even if the seller does not make the 

telephone call. To comport with FCC precedent and to ensure that law enforcement 

approaches to combat telemarketing violations under TCPA parallel those under the 

Telemarketing Act, the answer to this question should be yes. To reach any other 

conclusion would thwart Congress’s goals in passing legislation to combat 

telemarketing abuses. 

 

 FCC precedent establishes that an entity can be liable under the TCPA for a call 

made on its behalf even if the entity did not itself place the call. In 1995, the FCC stated 

in a Memorandum Opinion and Order (the “1995 Order”) that “rules generally establish 

that the party on whose behalf a solicitation is made bears ultimate responsibility for 

any violations.”19 Thus, as the FCC has explained, “[c]alls placed by an agent of a 

telemarketer are treated as if the telemarketer itself placed the call.”20 The FCC’s 

interpretation of its rules in the 1995 Order—that, for an entity to be liable for calls it did 

not place, the calls must have been placed “on behalf of” the entity—is consistent with 

the language of the TCPA, 47 U.S.C. § 227(c)(5), which establishes the private right of 

action for persons who have received more than one unlawful telemarketing call “by or 

on behalf of” the same entity. Thus, under those circumstances, the entity is properly 

deemed to have initiated the call through the person or entity that actually placed the 

call. 

 Subsequent FCC precedent confirms this interpretation. In a 2005 declaratory 

ruling that addressed telemarketing calls made by agents on behalf of an insurance 

company, the FCC “t[ook] th[e] opportunity to reiterate that a company on whose 

behalf a telephone solicitation is made bears the responsibility for any violation of our 

 

 ... continued footnote 

intervene in the suit. Id. If DOJ does not act within the 45-day period, the FTC may file the case in its 

own name, using its own attorneys. Id.

19 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Memorandum Opinion 

and Order, 10 FCC Rcd 12391, 12397 ¶ 13 (1995). 

20 Id. 
 6

telemarketing rules and calls placed by a third party on behalf of that company are 

treated as if the company itself placed the call.”21 And, reflecting a similar 

understanding of the TCPA, the FCC has approved consent decrees that concluded 

investigations into possible TCPA violations by entities on whose behalf third-party 

telemarketers made allegedly unlawful calls.22 Thus, in response to the Public Notice’s 

first question, it is clear that an entity may be held liable under the TCPA and the FCC’s 

regulations for calls made on its behalf, even though the entity did not itself place those 

calls. 

 Similarly, the FTC has consistently maintained that sellers are responsible for 

their marketers’ telephone calls to solicit purchases of the seller’s goods or services. 

Although the TSR uses the verb “cause” rather than “initiate,” the FTC’s approach to 

protecting consumers’ privacy is the same: a seller cannot escape liability for the 

telemarketing violations of its marketer. In its cases against DirecTV and ADT Security 

Services, for example, the FTC alleged that both sellers were responsible for the 

violations of their authorized dealers.23 As then-Chairman Majoras noted in connection 

with the DirecTV settlement, “This multimillion dollar penalty drives home a simple 

point: Sellers are on the hook for calls placed on their behalf. The Do Not Call Rule 

applies to all players in the marketing chain, including retailers and their 

telemarketers.”24

 The U.S. District Court for the Central District of Illinois has reached a similar 

conclusion in the DISH Network case. In denying DISH Network’s motion to dismiss, 

the court held that no formal principal-agent relationship was necessary to impose 

TCPA liability on DISH Network.25 Rather, it was sufficient if DISH retailers “acted as 

DISH Network’s representatives, or for the benefit of DISH Network.”26

 

21 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of State Farm 

Mutual Automobile Insurance Company for Clarification and Declaratory Ruling, Declaratory Ruling, 20 FCC 

Rcd 13664, 13667 ¶ 7 (2005) (citing 1995 Order ¶ 13). 

22 See, e.g., In the Matter of T-Mobile, USA, Inc., Order, 20 FCC Rcd 18272 (2005); In the Matter of NOS 

Communications, Inc., Order, 22 FCC Rcd 19396 (2007). 

23 See United States v. DirecTV, Case No. 8:05-cv-01211 (C.D. Cal. complaint filed Dec. 14, 2005) (FTC 

matter no. 042-3039), press release available at http://www.ftc.gov/opa/2005/12/directv.shtm; and 

United States v. ADT Security Services, Inc., Case No. 9:07-cv-81051 (S.D. Fla. complaint filed Nov. 6, 2007) 

(FTC matter no. 042-3091), press release available at http://www.ftc.gov/opa/2007/11/dncpress.shtm. 

24 See http://www.ftc.gov/opa/2005/12/directv.shtm. 

25 See fn.2, supra. 

26 United States v. DISH Network, LLC, 667 F. Supp. 2d 952, 963 (C.D. Ill. 2009), certification of interlocutory 

appeal denied, No. 09-3073, 2010 WL 376774, 2010 U.S. Dist. LEXIS 8957 (C.D. Ill. Feb. 4, 2010). A finding 

that liability can extend to sellers for their marketers’ telemarketing violations, however, does not end the 

inquiry. Both the FCC and the FTC’s telemarketing rules contain a “safe-harbor” provision. See 47 CFR § 

64.1200(c)(2) and 16 CFR § 310.4(b)(3). A seller or marketer may avoid liability if it can show that it 

complies with the safe-harbor provisions. 
 7

 The FCC’s Public Notice also seeks comment on the question: “What should 

determine whether a telemarketing call is made ‘on behalf of’ a seller, thus triggering 

liability for the seller under the TCPA? Should federal common law agency principles 

apply? What, if any, other principles could be used to define ‘on behalf of’ liability for a 

seller under the TCPA?”27

 The FTC believes that the term “on behalf of” as used in the TCPA and the FCC’s 

TCPA regulations is clear and unambiguous. As the Supreme Court has said, “absent 

sufficient indication to the contrary, Congress intends the words in its enactments to 

carry ‘their ordinary, contemporary, common meaning.’”28 Similarly, if an undefined 

term in a regulation is clear and unambiguous, it is applied according to its plain 

meaning.29 Accordingly, the term “on behalf of” should be accorded its common 

meaning. 

 The common meaning of “on behalf of” is “in the interest of”30 or “as a 

representative of” or “for the benefit of.”31 This definition is plain and unambiguous.32 

A solicitation is therefore “on behalf of” an entity if it is in the entity’s “interest,” in its 

“aid,” or for its “benefit.” There is no requirement that the person making the 

solicitation be the entity’s “agent.” Thus, the issue of whether the marketer’s efforts are 

“on behalf of” the seller, which efforts might have triggered a TCPA violation, turns 

upon whether the marketer’s solicitations are in the seller’s “interest” or “aid” or for the 

seller’s “benefit.” 

 Importantly, this common definition also ensures that sellers will not be 

rewarded for turning a blind eye to those who market sellers’ goods or services and 

whose marketing efforts inure to sellers’ benefit. The seller alone is in the best position 

to monitor the manner in which its products are marketed because it knows who is 

marketing and because it benefits most substantially from those marketing activities. A 

seller’s simple ploy of creating and maintaining an attenuated relationship with the 

marketer that induces sales of the seller’s products—and creates a revenue stream 

 

27 The Sixth Circuit Court of Appeals noted in Charvat v. EchoStar Satellite, LLC, that the FCC has not 

defined the term “on behalf of” with respect to the TCPA and its related rules and that the FCC 

supported referral of the issue under the “primary jurisdiction” doctrine. 630 F.3d 459, 465-468 (6th Cir. 

2010). 

28 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), citing Perrin v. United 

States, 444 U.S. 37, 42 (1979). 

29 Christensen v. Harris County, 529 U.S. 576, 588 (2000); Paragon Health Network, Inc. v. Thompson, 251 F.3d 

1141, 1145 (7th Cir. 2001). 

30 Merriam-Webster’s Collegiate Dictionary 103 (10th ed. 1999). 

31 Webster’s Third New International Dictionary 198 (2002). See also United States v. Frazier, 53 F.3d 1105, 

1112 (10th Cir. 1995); Craven v. United States, 215 F.3d 1201, 1207 (11th Cir. 2000). 

32 Madden v. Cowen & Co., 556 F.3d 786, 796-97 (9th Cir. 2009). 
 8

running directly to the seller—should not insulate that seller from liability for invading 

consumers’ privacy rights under the TCPA. 

 Indeed, a narrower interpretation of “on behalf of” would result in a variety of 

scenarios that could completely subvert Congress’s privacy-protection goals. For 

example, unless a seller in the United States bears responsibility and liability for calls 

placed on its behalf, it would have a strong incentive to set up an attenuated marketing 

structure involving entities marketing from overseas to U.S. citizens, possibly offering 

deeply discounted services because they can avoid the cost of subscribing to the 

Registry and scrubbing their call lists. Because these overseas marketers would not be 

within ready reach of United States law enforcement, the seller—who enjoys virtually 

all of the benefit generated by the calls—must be liable to foreclose the opportunity to 

circumvent the Do Not Call Rules. 

 Similarly, in the case of entity-specific Do Not Call Rules, it would be 

unworkable to hold only the marketer liable for violations. A marketer could commit 

telemarketing violations wholly based on the seller’s wrongdoing and an overlyrestrictive interpretation of “on behalf of” could absolve the seller, even if the fault for 

the violations lies at the seller’s door. Suppose, for example, that a seller engages 

Company A to market the seller’s products. Because Company A interfaces with 

recipients of the earlier telemarketing calls, Company A controls the intake point for 

consumers’ entity-specific Do Not Call requests, and Company A should see to it that 

the information necessary to effectuate those requests is recorded and compiled into an 

entity-specific Do Not Call list. Now suppose that the seller terminates its relationship 

with Company A and engages Company B to market the seller’s products. If the seller 

does not ensure that Company A’s entity-specific Do Not Call list gets transferred to 

Company B (or to the seller’s other marketers), the seller and Company B will proceed 

as though none of the consumers who told Company A to stop calling had asserted 

their entity-specific Do Not Call rights. In such a case, Company B could very likely 

violate the entity-specific Do Not Call Rules by placing calls to the seller’s customers 

who had asked not to be called. Under these circumstances, if an overly-restrictive 

definition of “on behalf of” were used, only Company B would be breaking the law 

even though the seller was the bad actor who should be held responsible. 

 Law enforcement efforts would also be thwarted if the government were 

required to sue each marketer separately rather than bring an action against the 

ultimate seller. Sellers may have thousands of “independent” marketers, and suing one 

or a few of them is unlikely to make a substantive difference for consumer 

privacy. Another marketer can simply spring up in its place and violate the law. Also, 

in a large network of marketers, it can be difficult and inefficient for the government to 

identify which marketers are violating the law. Sellers instead are in the best position to 

monitor and enforce compliance of their own marketers. Any other approach would 

amount to a game of “whack a mole,” in which the FTC or FCC would sue a marketer 
 9

or group of marketers, but the overall number of Do Not Call violations would not 

decrease. 

 The FTC and states have sought to stop invasions of consumers’ privacy in the 

litigation against DISH Network, LLC, and in prior enforcement actions against other 

sellers who operate through similar networks of purportedly “independent” marketers. 

By interpreting “on behalf of” to hold sellers liable for marketers’ violative telephone 

calls made to market the sellers’ goods or services, the FCC’s approach will be 

consistent with current law-enforcement efforts and will effectuate Congress’s 

consumer-protection goals. 

 As the Tenth Circuit Court of Appeals wrote when it upheld the national Do Not 

Call Rules in 2004: 

The national do-not-call registry offers consumers a tool with which they 

can protect their homes against intrusions that Congress has determined 

to be particularly invasive. Just as a consumer can avoid door-to-door 

peddlers by placing a “No Solicitation” sign in his or her front yard, the 

do-not-call registry lets consumers avoid unwanted sales pitches that 

invade the home via telephone, if they choose to do so.33

A comprehensive interpretation of “on behalf of” will have at least two beneficial 

effects to further Congress’s goal. First, it will effectuate consumers’ desire to protect 

their privacy and avoid telemarketing calls by encouraging sellers to oversee how their 

goods and services are marketed. If sellers know that they will face liability for 

telemarketing violations made on sellers’ behalf, sellers will be much more likely to 

heed consumers’ telemarketing complaints and discipline the marketers whose 

activities generate those complaints. Second, it will help to ensure that the FTC and the 

FCC can effectively protect consumers’ privacy by holding both sellers and their 

marketers liable for violations of Do Not Call and Robocall Rules. A clear and 

comprehensive interpretation of “on behalf of” is critical for effective TCPA 

enforcement. 

 To rely on federal common-law precedents based on agency and/or jointventure principles would be to import into the TCPA standards that have no place in 

this statutory cause of action. Indeed, there is no basis for adopting a standard 

incorporating common law agency principles, such as inquiry into the principal’s 

control over the purported agent’s activities. Neither the TCPA nor 47 CFR § 64.1200 

contains any reference to these common-law standards. If Congress had intended for 

common law standards to determine an entity’s liability for violating the TCPA, it could 

 

33 Mainstream Marketing Servs., Inc. v. FTC, 358 F.3d 1228, 1233 (10th Cir.), cert. denied, 534 U.S. 812 (2004). 
 10

easily have omitted the “on behalf of” phrase and defined how “agents” could expose 

their “principals” or how “joint venturers” could expose each other to such liability. 

Similarly, in promulgating rules pursuant to the TCPA, there would have been little 

reason for the FCC to spell out a detailed safe harbor, such as that found in 47 CFR 

§ 64.1200(c)(2), if federal common-law principles already limited who might be liable. 

Limiting the reach of TCPA liability by applying such principles would be contrary to 

the statute’s broad consumer-protection and privacy goals. 

Conclusion

 The FTC is pleased to share its experience in enforcing consumer protection laws 

and rules governing telemarketing and to assist the FCC in crafting policies to help 

protect Americans’ privacy and to safeguard consumers from unfair and deceptive 

telemarketing practices.