Telemarketing and texting demand letters: the TCPA and the FTSA

6.1What the law is

The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227,¹ and the FCC's implementing rules at 47 C.F.R. § 64.1200² regulate calls and text messages. Two rules produce nearly all demand letters.

• Section 227(b): autodialers and prerecorded voices. It is unlawful to call a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice without the prior express consent of the person called. For marketing calls and texts, the FCC rules require that consent to be in writing. In 2021 the Supreme Court held in Facebook, Inc. v. Duguid that an autodialer is a system that uses a random or sequential number generator,³ which narrowed the first part of the rule; the prerecorded-voice part was unaffected, and in 2024 the FCC ruled that AI-generated voices are "artificial" voices under the Act.⁴
• Section 227(c): the National Do Not Call Registry. Telemarketing calls to a residential number, including a cell phone, that is on the registry are unlawful absent written consent or an established business relationship within the rule's limits. A business must scrub its lists against a version of the registry obtained within the previous 31 days. A person who receives more than one such call in twelve months from the same business can sue.

The rules also require that telemarketing calls be made only between 8 a.m. and 9 p.m. in the called party's local time, that the caller identify the business and give a contact number, that the business keep a written do-not-call policy and honour requests to stop, and, under the FCC's 2024 revocation order, that a request to stop by any reasonable means be honoured within ten business days.

Text messages are calls for these purposes. The FCC has treated them so since 2003, and Duguid itself was a text-message case.

6.2The numbers

"Willful or knowing" has generally been read to require that the business knew it was making the call, not that it knew the call was unlawful. Calls after a STOP, after a registry listing, or after a demand letter are the clearest cases. One call can breach more than one provision, and letters sometimes count it under each.

6.3Who sends these letters

Three kinds of sender. Law firms acting for a person who received calls, often with a practice built on these claims. Companies that document calls and send pre-litigation demands on behalf of recipients, referring unresolved matters to litigation counsel. And individuals who received the calls and write themselves. The letter does not have to come from a lawyer: the statute gives the person called a private right of action, and a demand letter is correspondence, not a filing.

What distinguishes a genuine letter from a fraud is not the sender's profession but the content: a genuine letter lists the calls or texts with numbers, dates and times, cites the provisions above, shows the arithmetic, and comes from an entity you can find in a state registry at an address that exists. A fraud lists nothing specific and wants payment by gift card or cryptocurrency within hours.

6.4How to work out the exposure

Three layers.

1. The listed calls. Count the rows. Multiply by $500 and by $1,500. Add the Florida figure if the recipient is in Florida. This is the exposure on the letter itself, and the demand is usually below it.
2. The campaign. The same list, script and platform reached everyone else on the list, each with their own four-year claim. A filed case brings discovery of the dialer logs and lead files, which is how one person's claim becomes a class action. This is the exposure the letter signals.
3. The cost of contesting. Paid by the business win or lose: the Act gives a winning defendant no fee award, and most general liability policies exclude the claim.

Then subtract what the evidence removes. Prior express written consent in the FCC's form for a listed number removes that number. A check of the FCC's Reassigned Numbers Database before a wrong-number call is a safe harbour. Calls not made by or for your business, with records to show it, come off. "The vendor said the list was clean" removes nothing. If little comes off, the demand is usually below the exposure and below the cost of contesting, and resolving it by agreement is the sensible answer.

6.5Vendors, consent and the common defences

Vendors. In 2013 the FCC ruled, in response to questions from courts in the Dish Network litigation, that a seller is liable for calls made on its behalf under federal common law agency principles: actual authority, apparent authority or ratification.⁷ Buying leads from a generator you never audited and keeping the benefit is the ratification pattern. The vendor contract gives you a claim against the vendor for what you pay; it does not change your liability to the person called.

Consent. For marketing calls and texts with an automated system or prerecorded voice, the standard is prior express written consent under 47 C.F.R. § 64.1200(f): a signed agreement, electronic signatures included, with a clear and conspicuous disclosure that the person agrees to automated marketing contact from the named seller at that number, and a statement that consent is not a condition of purchase. A number typed into a contact form with no such disclosure is a number, not consent. Consent to unnamed "partners" has often been found insufficient; the FCC's one-to-one consent rule that would have required naming each seller was vacated by the Eleventh Circuit in January 2025,⁸ but naming the seller remains the safe practice. Consent can be revoked by any reasonable means and must be honoured within ten business days.

Other defences. An established business relationship, within the rule's limits, for Do Not Call claims. A reassigned-number check before the call. Calls that were informational rather than marketing. Standing and arbitration questions that a lawyer can assess. Each needs evidence, not assertion.

6.6The three responses

Resolve. Where the calls are in your logs and consent is thin, the demand-stage figure is usually below the statutory exposure and comes with a release, no filing and no discovery. Before paying: verify the sender, get a written release that names every listed call and the period, with a no-admission clause, and pay by a method that leaves a record.

Dispute. Where the calls were not made by or for you, or you hold consent in the right form, or the number was checked against the reassigned-numbers database, say so in writing with the records attached, row by row. A dispute with evidence is reviewed on the evidence. A dispute that is a denial changes nothing and uses up the deadline.

Ignore. The claim survives for four years. The demand-stage figure is withdrawn on referral. Discovery in a filed case opens the whole campaign. And every call to a listed number after the letter is a knowing call, the kind a court can treble. Of the three, this is the one with no upside beyond postponement.

Most well-handled matters are a combination: dispute the rows the evidence removes, resolve the rows that stand, and ask for the release terms with the counter. Chapter 13 covers the general decision.

6.7The first week

1. Write the deadline down.
2. Suppress every listed number in every system that can dial or message, including every vendor's, in writing, and keep the confirmations.
3. Preserve dialer logs, platform exports, lead files with consent fields, vendor contracts, scripts, the do-not-call policy, scrub reports and opt-out logs.
4. Verify the sender: state registry, domain, PACER, bar directory if a lawyer signed. How to respond to any demand letter walks through each check.
5. Match every listed call against your logs and find out who placed it.
6. Write to each vendor involved for consent records and give notice under the indemnity.
7. Notify the insurance broker in writing.
8. Decide, and reply in writing before the deadline.

Then fix the practice, because the campaign that produced this letter has produced others: written consent per number, scrubs every 31 days, automatic suppression on any opt-out shared across platforms and vendors, calling hours set to the recipient's time zone, and records kept four years.