A federal court in Texas recently granted a motion to dismiss TCPA claims where the plaintiff failed to plausibly allege that unidentified third-party telemarketers were acting as agents of the defendant, a question that is more often tested at summary judgment than at the pleading stage.
In Ortega v. Powur, PBC, No. 5:25-cv-0864-JKP, 2026 WL 711813 (W.D. Tex. Mar. 13, 2026), the pro se plaintiff alleged that he received multiple unsolicited telemarketing calls in April 2025 marketing solar products, despite having registered his number with the National Do-Not-Call Registry in 2012 and making repeated requests that the calls stop. When the calls persisted, the plaintiff feigned interest in order to schedule an appointment and identify the caller. During that call, the telemarketer used a fictitious business name and provided a nonexistent website address. The following day, a man identifying himself as Jose Daniel Laveaga called, identified himself as being from Powur, PBC, and stated that the earlier calls had come from Powur’s “marketing team.”
Based on those allegations, the plaintiff brought claims under 47 U.S.C. § 227(c), 47 C.F.R. § 64.1200(d), and two Texas statutory provisions. Powur moved to dismiss under Rules 12(b)(6) and 12(b)(1), arguing that the complaint failed to adequately plead an agency relationship linking Powur to the earlier callers.
The court agreed. Applying federal common-law agency principles, the court held that the plaintiff had failed to plausibly allege that the unidentified telemarketers who placed the April calls were agents of Powur. The court acknowledged that the FCC has recognized plaintiffs may not always have access to information about principal-agent relationships at the time they file suit, but concluded that a single offhand reference to a “marketing team,” without any factual allegations regarding control, authorization, or the nature of the relationship between Powur and those callers, was insufficient to plausibly allege an agency relationship under any theory. As the court put it, the plaintiff was simply asking the court to make an unsupported inferential leap.
With the earlier calls stripped from the case for lack of adequate agency allegations, only a single call remained: the May 7 call from Laveaga, which occurred after the plaintiff had solicited the appointment. That created two independent problems. First, a single call is insufficient to state a claim under § 227(c) or § 64.1200(d). Second, because the plaintiff had consented to or solicited that call himself, he lacked standing to challenge it, and the court dismissed the related Texas statutory claim under Rule 12(b)(1). The Texas claim under § 305, being derivative of the federal TCPA violations, fell with the federal claims as well.
The court also addressed one additional wrinkle. The individual defendant, Jose Daniel Laveaga, had not appeared in the case and was in default. The court noted that a defense established by a participating defendant generally inures to the benefit of a defaulting co-defendant and indicated its intent to enter final judgment against both defendants absent a showing from the plaintiff by March 27, 2026, as to why the case should proceed against Laveaga. The court declined to grant leave to amend, finding that the plaintiff had already been afforded the opportunity to address pleading deficiencies under the court’s standing order and had chosen to stand on his original complaint.
This decision is a useful reminder that vicarious liability must be plausibly pleaded, not assumed. A passing reference to a “marketing team” or similar label is not a substitute for factual allegations showing that the defendant actually controlled or authorized the callers at issue. Defendants facing TCPA complaints that rely on thin or conclusory agency allegations should scrutinize those pleadings carefully and consider whether an early motion to dismiss may be appropriate, even in contexts where such arguments are more commonly raised at summary judgment.
