Siding and Insulation Co. v. Alco Vending, Inc., 822 F.3d 886

Background

Siding & Insulation (Siding) received unsolicited fax advertisements in Nov. 2005 and July 2006 promoting Alco Vending (Alco); Siding had not consented to receive them and sued under the TCPA, 47 U.S.C. § 227(b)(1)(C).
The faxes were transmitted by Business to Business Solutions (B2B) / Macaw using B2B’s equipment; Alco contracted and paid B2B to provide fax advertising services and approved sample ads containing Alco’s content.
Alco claims it instructed B2B to send only to businesses that had consented, never received lists of recipients or transmission details, and relied on B2B’s assurances that the campaigns were lawful; B2B represented it was solely responsible for contents/destinations and offered indemnity.
The district court granted summary judgment for Alco after applying a federal common‑law vicarious‑liability (agency) standard; the court denied class certification as moot.
The Sixth Circuit reversed, holding the district court applied the wrong legal standard and remanded for application of the FCC’s pre‑2006 “on‑whose‑behalf” standard (governing faxes sent between the 1995 FCC Order and Aug. 1, 2006).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which legal standard governs Alco’s liability for faxes sent in Nov. 2005 & July 2006?	The FCC’s 2006 codified definition (strict liability for entity whose goods/services are advertised) applies.	2006 definition is not retroactive; only vicarious liability under federal common‑law agency applies.	The 2006 codification is inapplicable retroactively; apply the pre‑2006 “on‑whose‑behalf” standard.
Does §64.1200(f)(10)’s “whose goods or services are advertised” language impose strict liability here?	Yes — Alco’s services were advertised, so strict liability should attach.	No — rule became effective Aug. 1, 2006 and cannot increase liability for prior conduct.	No — application would be retroactive and increase liability; therefore it does not govern these 2005–2006 transmissions.
Is vicarious liability under federal common‑law agency the correct (exclusive) test for pre‑2006 fax cases?	N/A (Alco relied on this to avoid liability).	Alco: only vicarious liability (actual/apparent authority or ratification) can impose liability.	No — federal common‑law agency principles inform the inquiry but are not the sole test; the FCC’s “on‑whose‑behalf” standard governs.
What factors determine whether a third‑party broadcaster sent faxes “on behalf of” an advertiser?	Siding: apply factors under the FCC’s pre‑2006 framework to hold Alco liable.	Alco: evidence (lack of access to lists, B2B indemnity, disclaimers) shows B2B acted independently.	Adopted multifactor “on‑whose‑behalf” test (degree of control, content approval, contract terms, payment, access to lists, compliance measures); facts create genuine disputes requiring remand.

Key Cases Cited

BellSouth Telecomm., Inc. v. Se. Tel., Inc., 462 F.3d 650 (6th Cir. 2006) (retroactivity analysis and Landgraf principles govern whether later rules may be applied to past conduct)
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (standards for assessing retroactive application of statutes/rules)
United States v. Mead Corp., 533 U.S. 218 (2001) (framework for deference to administrative interpretations)
Christensen v. Harris Cty., 529 U.S. 576 (2000) (limits on deference to agency interpretations not embodied in formal rulemaking)
Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627 (6th Cir. 2015) (applied §64.1200(f)(10) to post‑2006 faxes; distinguishable here because transmissions occurred after the regulation’s effective date)
Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015) (endorsed the pre‑2006 “on‑whose‑behalf” standard and identified factors for the inquiry)
Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935 (7th Cir. 2016) (applied agency principles to assess whether faxes were sent on behalf of a defendant)