Can the lead generator be liable instead of me?
As well as you, not instead of you. The person called can pursue everyone in the chain who made or benefited from the calls. Shifting the cost to the lead generator is a separate claim under your contract with them.
The lead generator can be liable, but alongside you rather than in your place. The TCPA gives the person called a claim against whoever made the call and, under the FCC's 2013 Dish Network ruling, against the seller on whose behalf it was made. Both can be sued. The recipient usually writes to the seller because the seller is the party it can identify. Whether the lead generator ends up bearing the cost is a question between you and the lead generator under your contract, and it is a question you have to pursue yourself.
Where vicarious liability comes from
Federal common law agency. Actual authority: you engaged the generator to produce leads by calling. Apparent authority: the generator used your name, offer or branding so that the person called reasonably believed they were dealing with you. Ratification: you knew, or should have known, how the leads were produced and kept buying them. Buying transferred calls from a generator you never audited is the usual ratification pattern. See is my business liable if a vendor made the calls.
Shifting the cost
Read the contract for three things: a compliance warranty, an indemnity, and a records clause. Then, in writing and this week: notify the generator of the demand under the indemnity, request the consent record and lead source for every listed number, and reserve your rights. If the generator produces prior express written consent in the FCC's form for a number, that number comes off the count for everyone. If it cannot, you have both the answer to the demand and the basis of your claim against the generator. The same test applies to a purchased list; see we bought a list the vendor said was clean, does that matter.
What does not work
Telling the sender "the lead generator did it" and stopping there. It is true and it is not a defence. The reply to the sender still has to deal with each listed call on the evidence.
People also ask
Can I just forward the letter to the lead generator?
Forward it, with a written notice under the contract and a request for records. Do not treat that as your reply to the sender. The sender’s claim is against you and needs its own written response before the deadline.
What if the lead generator is overseas or dissolved?
Then the indemnity is worth little, and the exposure sits with you. That is the risk of buying leads without auditing how they were made.
Does it matter that I paid per lead rather than per call?
Not much. Ratification turns on accepting the benefit of calls you knew or should have known were unlawfully made. The payment model does not change that.