In Gomez v. Campbell-Ewald Co., plaintiff alleged that defendant violated the TCPA by sending unsolicited text messages on behalf of the US Navy and without consent. Defendant moved for summary judgment, arguing that it could not be held liable under the TCPA because, inter alia, the texts were sent by a third party vendor. After the court granted the motion, plaintiff appealed, and the appellate court reversed. The appellate court concluded that defendant could be held vicariously liable for the calls made by the vendor under an agency theory, and remanded the case to determine if the vendor was defendant's agent.
In Prater v. Medicredit, defendant moved to stay plaintiff's lawsuit filed alleging violations of the TCPA under the primary jurisdiction doctrine. Defendant argued that the FCC's consideration of whether the TCPA applies to non-telemarketing calls and whether the equipment used to call must have a current capacity to generate and dial random or sequential numbers to qualify as an ATDS required staying the case. The court denied the motion, finding that the courts and FCC have already spoken on these issues, and that any possible change in the law that may be forthcoming was speculative and insufficient to support the stay.
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