TCPA Vicarious Liability: When Your Vendor's Calls Become Yours

November 2, 2026. A business that hires an agency or a call center to phone prospects usually does not "initiate" those calls under the Telephone Consumer Protection Act, and it can still be sued for them. The FCC said so in a declaratory ruling released 9 May 2013: a seller "may be held vicariously liable under federal common law principles of agency" for a third-party telemarketer's violations of both the robocall rules in section 227(b) and the do-not-call rules in section 227(c), including through "apparent authority and ratification," not just a formal agency contract. The ruling lists the evidence that can get a seller there: giving the caller access to pricing or customer data, letting it enter leads into the seller's systems, letting it use the seller's trade name, approving or writing its scripts, or knowing about violations and failing to stop them. Since 20 June 2025, on our reading, a district court hearing a private TCPA suit is not bound by that ruling: the Supreme Court held in McLaughlin Chiropractic v. McKesson that the Hobbs Act does not bind district courts in civil enforcement proceedings to an agency's interpretation, and that courts "must independently determine the law's meaning" while "affording appropriate respect" to the agency's view. The do-not-call statute itself still reaches calls made "by or on behalf of" a company, so the exposure has not gone anywhere. Here is how the pieces fit for a team that outsources its dialing.

The seller is not the caller, and the statute knows it

The FCC rules in 47 CFR 64.1200(f) define two roles. The "telemarketer" is "the person or entity that initiates a telephone call or message" to encourage a purchase. The "seller" is "the person or entity on whose behalf a telephone call or message is initiated." The do-not-call rule in 64.1200(c)(2) then speaks to "any person or entity making telephone solicitations (or on whose behalf telephone solicitations are made)," and the private right of action in 47 U.S.C. 227(c)(5) covers a person who received more than one call in 12 months "by or on behalf of the same entity." The "on behalf of" language gives do-not-call plaintiffs a textual hook against the seller. For both sections, the FCC applied federal common law agency principles, as the next section explains.

What the FCC's 2013 DISH ruling decided

The ruling, FCC 13-54, adopted 17 April 2013 and released 9 May 2013, answered petitions arising from two pending lawsuits, including litigation involving DISH Network. The Commission's summary: "while a seller does not generally 'initiate' calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers."

Paragraph 28 widens the net beyond formal agency: a seller "may be liable for violations by its representatives under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification." As the petitioner Charvat framed them in the proceeding, ratification is "when the seller accepts the benefits of the telemarketer's actions," and apparent authority is "when the seller affirmatively, or through negligent inaction, makes it appear to third parties that the telemarketer has authority to act on the seller's behalf."

The ruling also drew a line. It rejected DISH's argument that this would make manufacturers liable for calls by big-box stores that resell their products: a store "selling on its own account," having bought goods to resell, means "the manufacturer would not be a seller at all." And it added that "vicarious seller liability should not decrease telemarketers' incentives to obey TCPA restrictions", so the caller's own exposure does not go away.

The evidence the FCC said may show apparent authority

Paragraph 46 is the part to print out. The Commission offered "illustrative examples of evidence that may demonstrate that the telemarketer is the seller's authorized representative with apparent authority." In the ruling's words, apparent authority "may be supported by evidence that the seller allows the outside sales entity access to information and systems that normally would be within the seller's exclusive control," and the list runs:

1. "access to detailed information regarding the nature and pricing of the seller's products and services";
2. access "to the seller's customer information";
3. "the ability by the outside sales entity to enter consumer information into the seller's sales or customer systems";
4. "the authority to use the seller's trade name, trademark and service mark";
5. evidence "that the seller approved, wrote or reviewed the outside entity's telemarketing scripts";
6. and, separately, that the seller "knew (or reasonably should have known) that the telemarketer was violating the TCPA on the seller's behalf and the seller failed to take effective steps within its power to force the telemarketer to cease that conduct."

Read that list against a normal outsourced calling setup. The agency has your price sheet and your CRM login, writes or at least gets your sign-off on the script, introduces itself with your company name, and books meetings into your calendar. On the FCC's framework, that is the evidence, not the defense.

June 2025: in court, the ruling is persuasive, not binding

Until June 2025 the open question was whether the Hobbs Act bound a district court to the FCC's reading. On 20 June 2025 the Supreme Court decided McLaughlin Chiropractic Associates v. McKesson Corp., 606 U.S. 146, a TCPA fax case. The syllabus states the holding: "The Hobbs Act does not bind district courts in civil enforcement proceedings to an agency's interpretation of a statute. District courts must independently determine the law's meaning under ordinary principles of statutory interpretation while affording appropriate respect to the agency's interpretation."

What that changes is the argument, not the exposure. A district court hearing a vicarious liability claim now decides for itself whether section 227(b) incorporates federal agency principles, with the FCC's reasoning as persuasive authority rather than a command. The ruling's own paragraph 29 anticipated the question, observing that "federal statutory tort actions, such as those authorized under the TCPA, typically are construed to incorporate federal common law agency principles of vicarious liability where, as here, the language of the statute permits such a construction." A seller should expect plaintiffs to keep pleading the DISH factors and defendants to test them court by court.

The FTC reaches the helper directly

The Telemarketing Sales Rule reaches helpers directly. Under 16 CFR 310.3(b) it is a deceptive practice "for a person to provide substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates" the rule's core provisions. The TSR defines a seller as anyone who "provides, offers to provide, or arranges for others to provide goods or services" in a telemarketing transaction, so the client is the seller even when it never touches a phone. The FTC's warning letters to healthcare lead generators on 29 October 2026 put the TSR civil penalty at "up to $53,088 per violation."

What to put in the vendor contract

1. Consent and do-not-call duties, named by rule. Who scrubs against the national registry (a copy no more than 31 days old under 64.1200(c)(2)(i)(D)), who records opt-outs "at the time the request is made" under 64.1200(d)(3), and who stores the proof. Our Vapi vs Retell comparison shows how differently two AI platforms write these duties into their terms.
2. Script approval with a compliance read. Approving the script is evidence of apparent authority under paragraph 46, so approve it for compliance, not only for conversion. The opening lines we recommend are in is AI cold calling legal.
3. A stop-work clause and a monitoring right. The last DISH factor is knowing about violations and failing to stop them. Reserve the right to pause a campaign the same day and to audit call recordings and consent logs.
4. Indemnity that matches the statute. Private damages are $500 per call under 227(b)(3), up to three times that if willful or knowing, so an indemnity capped at the monthly fee is decoration.

If you would rather run outbound on a platform that keeps consent, scrubbing and opt-out records in your own account, see AI calling built around TCPA consent. Inbound demand through our AI call answering agent sits outside these outbound questions. For the private-law side of the same relationship, whether your business is bound by what an agent says, read AI voice agent liability, and compare vendors in best AI voice agents. This is general information, not legal advice.