California TCPA Overlay | State Telemarketing Laws & Enhanced Remedies

California Telemarketing Laws

Why California Matters: California imposes additional telemarketing restrictions beyond federal TCPA. Defendants often face both federal and state claims, significantly increasing exposure. Understanding these overlapping requirements is critical for defense strategy.

Cal. Pub. Util. Code Section 2872 et seq.

California's primary state-level robocall statute, administered by the California Public Utilities Commission (CPUC):

Key Provisions

Section 2872: Prohibits use of automatic dialing-announcing devices (ADADs) to make unsolicited calls unless the caller has "prior express consent"
Section 2872.5: Requires ADADs to identify the caller and provide a toll-free callback number at the beginning of each message
Section 2874: Caller must disconnect within 5 seconds of recipient hanging up
Section 2875: Prohibits calls before 9 AM or after 9 PM local time

Critical Difference from Federal TCPA: Cal. Pub. Util. Code applies to all automatic dialing-announcing devices, not just ATDS calls to cell phones. This can capture calls to landlines that might not be covered by federal TCPA in some circuits.

Cal. Bus. & Prof. Code Section 17590 et seq.

California's "Caller ID" statute with specific requirements:

Section 17592 Requirements

Caller ID Display: Telemarketers must transmit caller ID information that displays their name and phone number
Blocking Prohibited: Cannot use caller ID blocking services
Spoofing Prohibited: Cannot transmit false or misleading caller ID information
Callback Number: Displayed number must be capable of receiving calls

Section 17593: Private Right of Action

Consumers can sue for $500 per violation
Treble damages (up to $1,500) for willful violations
This is in addition to federal TCPA damages

Unfair Competition Law (UCL) - Bus. & Prof. Code Section 17200

California's UCL provides a broad enforcement mechanism for telemarketing violations:

Three UCL "Prongs"

Prong	Application to Telemarketing	What Plaintiff Must Show
Unlawful	TCPA violation = UCL violation	Underlying TCPA or state law violation
Unfair	Telemarketing practices harmful to consumers	Harm outweighs utility; violates public policy
Fraudulent	Deceptive caller ID, misleading scripts	Likely to deceive reasonable consumers

UCL Remedies: Restitution and injunctive relief (not statutory damages), but critically allows claims without meeting TCPA's technical ATDS definition.

CCPA Overlap Considerations

The California Consumer Privacy Act (CCPA) can intersect with telemarketing claims:

Phone Numbers as Personal Information: Cell phone numbers are "personal information" under CCPA
Consent for Marketing: CCPA's "sale" definition may apply to lead generation and data sharing with telemarketers
Opt-Out Rights: CCPA opt-out requirements may overlap with TCPA opt-out requirements
Data Broker Registration: Lead sellers may have CCPA data broker registration obligations

Practice Tip: Plaintiffs are increasingly adding CCPA claims to TCPA lawsuits, arguing that failure to honor opt-outs or improper data sharing violates both statutes.

Federal vs. California: Side-by-Side

Federal TCPA

ATDS definition: Circuit split on what qualifies
Cell phones: Prior express consent required
Landlines: Looser restrictions (residential DNC)
Damages: $500-$1,500 per call/text
Enforcement: FCC + private right of action

California Overlay

ADAD definition: Broader than some ATDS interpretations
All phones: Consent required for ADAD use
Caller ID: Must display accurate information
Damages: Additional $500-$1,500 per violation
Enforcement: CPUC + AG + private right of action + UCL

Enhanced Remedies Under California Law

Stacking Exposure: California plaintiffs can pursue both federal TCPA and state law claims, potentially doubling or tripling per-violation damages.

State Attorney General Enforcement

California AG Powers

Civil Penalties: Up to $2,500 per violation under UCL
Injunctive Relief: Cease operations, modify practices
Restitution: Refund of any money obtained through unlawful practices
Investigative Powers: Subpoena records, examine witnesses

Recent AG Activity: California AG has increasingly targeted robocall operations, particularly those involving:

Healthcare and Medicare-related scams
Debt collection robocalls
Auto warranty extension calls
Solar/home improvement telemarketing

UCL Claims - Additional Exposure

Why Plaintiffs Add UCL Claims

Broader Standing: UCL's "lost money or property" standard is easier to meet than TCPA's concrete injury requirements in some courts
No ATDS Requirement: UCL "unfair" prong doesn't require proving ATDS
Equitable Relief: Injunction can shut down entire campaign
Restitution: Disgorgement of profits from unlawful telemarketing
Four-Year Statute of Limitations: Longer than TCPA's four years in some cases

UCL Remedies Available

Remedy	Description	Business Impact
Restitution	Return money obtained through unfair practices	Can include all revenue from unlawful campaigns
Injunction	Court order to stop practices	May require halting all telemarketing
Civil Penalties	$2,500 per violation (AG/DA enforcement)	Can exceed TCPA damages for large campaigns

Additional Damages Under State Law

Stacking Damages Example

Scenario: 1,000 automated calls to California residents without consent

Claim	Damages Per Call	Total (1,000 calls)
Federal TCPA (willful)	$1,500	$1,500,000
Cal. Bus. & Prof. Code 17593 (willful)	$1,500	$1,500,000
Cal. Pub. Util. Code 2872	Varies	Additional penalties
Combined Maximum	$3,000+	$3,000,000+

PAGA Exposure (Private Attorneys General Act)

While PAGA primarily applies to employment claims, some plaintiffs have attempted to leverage PAGA-style theories in consumer protection contexts:

Representative Actions: Single plaintiff pursues claims on behalf of "aggrieved" recipients
Civil Penalties: 75% to state, 25% to plaintiff
No Class Certification: Avoids class action requirements

Defense Note: PAGA-style telemarketing claims remain relatively rare and face procedural challenges, but watch for creative plaintiffs' attorneys testing this theory.

Attorney Fee Exposure

California Fee-Shifting Provisions

Cal. Civ. Code Section 1780(e) (CLRA): If telemarketing includes deceptive consumer practices, one-way fee shift to prevailing plaintiff
Private Attorney General Doctrine: Fees available when enforcing important public rights
Contract-Based Fees: If your terms include fee provisions, they may be invoked

Settlement Consideration: California attorney fee exposure often exceeds the underlying damages claim, making early settlement economically rational even for smaller claims.

California's Stricter Consent & Compliance Requirements

Key Takeaway: California requires stricter consent standards and compliance procedures than federal law. Businesses compliant with federal TCPA may still violate California law.

Written Consent for Robocalls

Cal. Pub. Util. Code Section 2872 Standard

California's "prior express consent" standard for automatic dialing-announcing devices (ADADs) requires:

Express: Cannot be implied from conduct or relationship
Prior: Must be obtained before any automated calls
Documented: Should be provable with contemporaneous records
Specific: Should identify the types of calls authorized

Best Practices for California Consent

Element	Federal Minimum	California Best Practice
Form	Oral or written	Written (electronic signature OK)
Language	"Clear and conspicuous"	Standalone disclosure, not buried in terms
Specificity	General marketing consent	Specify: autodialed, prerecorded, text vs. call
Revocation	Any reasonable means	Honor immediately, document timestamp

Caller ID Requirements

Bus. & Prof. Code Section 17592 Compliance

Display Accurate Name: Business name as registered, not a misleading DBA
Display Working Number: Number must be able to receive calls and be answered during business hours
No Spoofing: Cannot display numbers you don't control
No Blocking: Cannot use caller ID blocking services

Common Violation: Using a single toll-free "campaign number" that no one answers or that plays a generic recording. California requires a number that can actually receive and respond to calls.

Caller ID Audit Checklist

Verify displayed name matches your legal business name
Confirm callback number is staffed and can receive calls
Test that caller ID displays correctly on recipient devices
Review vendor/platform settings for any blocking configurations
Document your caller ID configuration with screenshots

Time Restrictions

Cal. Pub. Util. Code Section 2875

California prohibits ADAD calls:

Before 9:00 AM recipient's local time
After 9:00 PM recipient's local time

Compliance Note: You must determine the recipient's time zone, not your own. For California-based campaigns, this is straightforward. For national campaigns, implement time zone logic based on area code or address.

Disconnect Requirements

Section 2874: 5-Second Disconnect Rule

When a recipient hangs up, your ADAD system must:

Detect the disconnect signal
Release the line within 5 seconds
Not attempt reconnection

California-Specific Consent Language

Recommended Disclosure Template

Sample California-Compliant Consent:

"By checking this box and clicking Submit, I consent to receive autodialed and/or prerecorded telemarketing calls and text messages from [Company Name] at the phone number I provided, including calls made by an automatic telephone dialing system. I understand that my consent is not required to purchase goods or services, and I may revoke consent at any time by texting STOP or calling [toll-free number]. Message and data rates may apply. Message frequency varies."

Key Elements for California

Separate checkbox - Not combined with terms acceptance
Clear identification of automated/prerecorded nature
Working opt-out mechanism with multiple options
No conditional consent (e.g., "required to complete purchase")

Record Retention Requirements

What to Preserve

Record Type	Retention Period	Why It Matters
Consent records	4+ years after last contact	Statute of limitations defense
Opt-out logs	Indefinitely	Prove compliance with revocations
Call/text logs	4+ years	Match consent to specific communications
Caller ID configuration	4+ years	Prove Section 17592 compliance
Vendor contracts	Duration + 4 years	Indemnification, compliance representations

California-Specific Defense Strategies

Defense Framework: California claims require both federal TCPA defenses and state-specific arguments. A comprehensive defense strategy addresses both layers.

Challenging State Law Claims

Preemption Arguments

Federal Preemption: Argue TCPA preempts conflicting state laws (limited success)
FCC Order Preemption: FCC interpretive orders may preempt stricter state requirements
Limitations: Courts generally allow state laws that provide greater consumer protection

Reality Check: Preemption arguments rarely succeed in California telemarketing cases. Courts typically find state laws "complement" rather than "conflict with" federal TCPA. Focus on substantive defenses instead.

Statutory Standing Challenges

Cal. Bus. & Prof. Code Section 17593: Requires plaintiff received the call - challenge if they're pursuing representative claims
UCL Standing: Requires "lost money or property" - challenge if no actual harm demonstrated
Proposition 64: Limited private UCL standing to those who suffered injury in fact

California-Specific Affirmative Defenses

Consent Defense Under California Law

Express consent obtained: Document the consent mechanism, timestamp, and language
Consent not revoked: Show opt-out logs don't include plaintiff
Scope of consent: Prove calls fell within what was authorized
Third-party consent: If consent came via lead provider, document chain of custody

Established Business Relationship (EBR)

California recognizes EBR defense for certain calls:

Prior purchase or transaction within 18 months
Inquiry or application within 3 months
Limitation: EBR doesn't override explicit opt-out requests

Technology Defense

Not an ADAD: System doesn't meet California's automatic dialing-announcing device definition
Human intervention: Calls required meaningful human involvement before connection
One-to-one dialing: System didn't have capacity to dial numbers without human input

Anti-SLAPP Considerations

When Anti-SLAPP May Apply

California's Anti-SLAPP statute (CCP Section 425.16) can apply to certain telemarketing claims:

Protected Activity: Speech in connection with public issue or issue of public interest
Potential Applications:
- Political campaign calls
- Nonprofit advocacy calls
- Calls about matters of public concern (healthcare, safety)

Anti-SLAPP Procedure

Step	Burden	Timing
1. Motion to Strike	Defendant shows protected activity	60 days from service
2. Burden Shift	Plaintiff must show probability of prevailing	Opposition deadline
3. Discovery Stay	Automatic pending motion	Until motion decided
4. Fee Award	Prevailing defendant gets fees	If motion granted

Limitation: Anti-SLAPP rarely applies to commercial telemarketing. Courts distinguish commercial speech (not protected) from public interest speech (potentially protected). Don't rely on this for standard marketing calls.

Damages Mitigation

Challenging Willfulness

Good faith compliance efforts: Document TCPA training, consent procedures, DNC scrubs
Vendor reliance: Show reasonable reliance on vendor compliance representations
Prompt remediation: Document immediate action upon receiving complaint
Industry standard practices: Show alignment with industry compliance norms

Reducing Per-Violation Exposure

Single campaign defense: Argue related calls constitute single violation, not multiple
De minimis violations: Technical violations without actual harm may warrant reduced damages
Constitutional due process: Excessive statutory damages may violate due process (BMW v. Gore framework)

Forum Considerations

Federal vs. State Court

Factor	Federal Court	California State Court
TCPA claims	Concurrent jurisdiction	Concurrent jurisdiction
State law claims	Supplemental jurisdiction	Primary jurisdiction
Class certification	Rule 23 (often stricter)	CCP 382 (varies by county)
Jury pool	Broader geographic area	Local county

Attorney Services for California TCPA Defense

California-Specific Expertise: Defending TCPA claims in California requires knowledge of both federal law and California's unique statutory overlay. State-specific strategies can significantly impact outcomes.

When You Need California TCPA Counsel

Demand alleges California-specific violations (Cal. Pub. Util. Code, Bus. & Prof. Code)
Plaintiff is a California resident or calls were made to California numbers
Claim includes UCL allegations ("unfair," "unlawful," or "fraudulent" practices)
State AG or CPUC involvement or threat of regulatory action
Class action filed in California state or federal court
Multiple state law claims stacked with federal TCPA

Services Provided

Pre-Litigation Defense

Demand letter analysis: Assess California-specific claims and exposure
State law audit: Review compliance with Cal. Pub. Util. Code and Bus. & Prof. Code
Defense strategy: Identify California-specific defenses and arguments
Settlement negotiation: Resolve claims before litigation with appropriate releases
Regulatory response: Respond to CPUC or AG inquiries

Litigation Defense

Motion practice: Anti-SLAPP motions, demurrers, motions to dismiss
Discovery: Defend against overbroad requests, conduct strategic discovery
Class opposition: Challenge class certification under California standards
Trial: Full litigation defense through judgment
Appeals: California Court of Appeal and Supreme Court

Compliance Remediation

California consent audit: Review and update consent language for state compliance
Caller ID compliance: Ensure Bus. & Prof. Code Section 17592 compliance
Policy updates: Revise telemarketing policies for California requirements
Vendor review: Audit vendor compliance with California law

Schedule a Consultation

Discuss your California TCPA matter with experienced counsel. We can assess your exposure under both federal and state law and develop an appropriate defense strategy.

Contact: owner@terms.law

California State Bar #279869