In Desai v. ADT Sec. Services, Inc., 2011 WL 2837435 (N.D.Ill. 2011), Judge Buklow held that the TCPA can impose respondeat superior liability.
First, ADT argues that it can be held liable only if it “made” or “initiated” the calls in question. As ADT points out, the TCPA provisions invoked by plaintiffs make it unlawful (subject to exceptions not relevant here, “to make any [unauthorized] call … to any cellular telephone service,” 47 U.S.C. § 227(b) (1)(A)(iii) (emphasis added), or “to initiate any telephone call to any residential telephone line,” 47 U.S.C. § 227(b)(1)(B) (emphasis added). The “on behalf of” language that plaintiffs rely upon is found in a separate subsection of the Act, § 227(c)(5), which addresses violations of regulations regarding the Do–Not–Call list. ADT therefore argues that it cannot be held liable for calls merely made on its behalf. ADT also argues that there is no ground for holding it liable on the basis of traditional agency principles. ¶ One problem with ADT’s position is that it would frustrate the TCPA’s overriding purpose. See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009) (“The TCPA was enacted to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile machines and automatic dialers. The TCPA was enacted in response to an increasing number of consumer complaints arising from the increased number of telemarketing calls. The consumers complained that such calls are a nuisance and an invasion of privacy.”) (quotation marks and citations omitted). On ADT’s view, a party could benefit from violations of the TCPA with impunity, so long as the task of actually making the phone calls were delegated to another entity. ¶ Nor does the statutory test suggest that liability should be limited to parties that actually made the offending phone calls. On the contrary, subsection(b)(1)(B)’s prohibition on “initiating” phone calls, as opposed to subsection (b)(1)(A)(iii)’s prohibition on “making” calls, clearly indicates that liability does not require a party to make a call. The term “initiate” is broad enough to include cases where, as plaintiffs allege of ADT here, a party has encouraged or otherwise prompted its authorized dealers to make calls on its behalf. To be sure, ADT staunchly denies that it encouraged its dealers to make such calls. Indeed, ADT claims that it specifically forbade its authorized dealers from violating the TCPA and other laws. But whether this is so is a factual matter that cannot be resolved on a Rule 12(b)(6) motion.