CRITICAL: The first 48 hours after receiving a TCPA demand letter are crucial. What you do (and don't do) in this window can significantly impact your exposure and defense options.
Immediate Actions (First 4 Hours)
FREEZE All Campaigns
Pause ALL automated outbound calls and texts immediately. Every additional contact after receiving notice could be "willful" at $1,500 per violation.
Issue Litigation Hold
Send immediate preservation notice to IT, marketing, and any vendors. Stop auto-deletion of call logs, consent records, and opt-out data.
Do NOT Respond Yet
No admissions, no apologies, no "let's work this out" emails. Any response could be used against you. Assess first.
Do NOT Delete Anything
Deletion of evidence after demand receipt = spoliation. This can result in adverse inference at trial and separate sanctions.
Evidence Preservation Checklist (First 24 Hours)
Call/text platform logs - Export full history for claimant's number(s). Include timestamps, content, campaign IDs.
Consent records - Locate and export webform submissions, CRM consent fields, lead purchase records.
Opt-out/DNC records - Export internal suppression list with timestamps. When did they request stop? When was it processed?
Lead source documentation - If third-party lead, get purchase agreement, lead seller's consent proof, chain of custody.
Backup schedules - Ensure current backups exist before any system changes
Initial Scope Assessment (First 48 Hours)
Key Questions to Answer:
How many calls/texts were sent to this person?
What was the campaign? Marketing, collections, informational?
How did we get their number? Customer, lead purchase, website form?
Do we have documented consent? Where is it stored?
Did they ever opt out? When? Did we honor it?
Was this an ATDS or manual dialing?
Who else received the same campaign? (Class action indicator)
Do NOT Do These Things
Mistake
Why It's Harmful
Apologize in writing
"Sorry this happened" can be used as admission of fault. Stick to neutral language.
Offer quick settlement
Premature settlement without understanding exposure may be too low (inviting more claims) or unnecessary.
Delete the claimant's data
Deleting evidence = spoliation. Export and preserve, don't delete.
Continue texting them
Any contact after demand can be willful ($1,500) and shows bad faith.
Blame your vendor immediately
You may still be vicariously liable. Document vendor involvement but don't assume you're off the hook.
Exposure Assessment
TCPA Statutory Damages: $500 per violation (negligent) | $1,500 per violation (willful/knowing)
How Claims Are Counted
Per-Call/Per-Text Counting
Each individual call or text message is a separate violation. A "campaign" of 50 texts to one person = 50 potential violations.
Scenario
Violation Count
Exposure Range
5 marketing texts to one person
5 violations
$2,500 - $7,500
3 robocalls + 10 texts to one person
13 violations
$6,500 - $19,500
Same campaign to 100 people (10 texts each)
1,000 violations
$500,000 - $1,500,000
What Counts as a "Violation"
Calls using ATDS (automatic telephone dialing system) to cell phones without prior express consent
Prerecorded/artificial voice calls to cell phones without prior express consent
Telemarketing calls/texts without prior express WRITTEN consent
Calls to DNC-listed numbers (National DNC or internal DNC)
Calls after revocation of consent (ignoring opt-out/STOP requests)
Willfulness Multiplier (3x Damages)
$1,500 per violation applies when conduct is "willful or knowing"
Courts interpret this broadly. You don't need to know TCPA exists - just intent to make the calls.
Factors That Trigger Willfulness
Continued calling after cease request - Ignoring STOP texts or verbal opt-outs
Calling after receiving demand letter - Any calls/texts after you're on notice
No consent verification process - Calling purchased leads without checking consent
Known ATDS use - Using predictive dialers on cell phone lists
Industry knowledge - If TCPA compliance is standard in your industry, ignorance is harder to claim
Prior TCPA issues - Previous complaints, lawsuits, or regulatory warnings
Class Action Risk Indicators
Class action multiplies individual exposure exponentially. A $15,000 individual case becomes a $15,000,000 class case if 1,000 recipients were similarly contacted.
High-Risk Class Indicators
Uniform campaign - Same script/message sent to entire list
Large recipient list - Hundreds or thousands of recipients
Purchased leads - Third-party list with uncertain consent provenance
ATDS/auto-dialer use - Automated system touching many numbers
Missing consent records - Can't prove consent for most recipients
Plaintiff's counsel involvement - Experienced TCPA lawyers often seek class certification
Example Exposure Calculation
Marketing Text Campaign
Recipients contacted:500 people
Texts per recipient:8 texts
Total violations:4,000 texts
Negligent damages ($500):$2,000,000
Willful damages ($1,500):$6,000,000
REALISTIC SETTLEMENT RANGE:$50,000 - $500,000
Note: Actual settlements are typically far below statutory maximums. Courts and plaintiffs recognize that bankruptcy-inducing judgments benefit no one. But exposure calculations establish negotiation leverage.
Mitigating Factors for Exposure
Factor
Impact on Exposure
Strong consent documentation
Can eliminate liability entirely
Quick opt-out processing
Limits post-revocation damages
Vendor indemnification
May shift costs to third party
Manual dialing (not ATDS)
Eliminates ATDS-specific claims
Existing business relationship
May provide consent defense
Transactional (not marketing) calls
Lower consent requirements
Defense Strategies
Key principle: TCPA defenses are fact-intensive. The strength of any defense depends on your documentation and ability to prove the underlying facts.
Consent Defenses
Prior Express Consent (Non-Telemarketing)
For informational or transactional calls/texts, you need "prior express consent" - which can be oral or written and need not be obtained through specific language.
What qualifies: Customer provided number as part of transaction; agreed to receive updates
Proof needed: Record of consent (webform, CRM entry, recorded call, signed document)
Limitation: Consent is limited to the scope given - marketing messages require more
Prior Express Written Consent (Telemarketing)
Marketing calls/texts require written consent with specific disclosures. This is a higher bar.
What qualifies: Signed agreement (electronic OK) with clear disclosure that person may receive telemarketing calls/texts using automated systems
Proof needed: The signed/clicked disclosure, timestamp, IP address, webform screenshot
Key element: Must disclose that calls/texts are automated and may be promotional
Established Business Relationship (EBR)
Limited Defense: EBR does NOT exempt you from TCPA cell phone rules or prior express consent requirements. It primarily applies to DNC defenses.
EBR allows calling numbers on National DNC for 18 months after transaction
Does NOT allow ATDS calls to cell phones without consent
Does NOT exempt telemarketing written consent requirement
Technology Arguments
Not an ATDS (Post-Facebook v. Duguid)
After the 2021 Supreme Court decision, ATDS requires equipment that can generate random/sequential numbers or dial from such a list.
Defense: Your system dials from a pre-existing customer list, not randomly generated numbers
Evidence needed: Documentation of dialer capabilities; how lists are loaded
Limitation: This defense only applies to ATDS claims, not prerecorded voice or DNC claims
Manual Dialing
Defense: Calls were made by human agents manually dialing, not automated system
Evidence needed: Call logs showing agent ID, dialer configuration, training records
Limitation: "Click to call" may still be ATDS depending on system capabilities
Vendor/Third-Party Causation
Lead Seller Responsibility
Argument: Lead seller represented they had proper consent; you relied on that representation
Evidence needed: Lead purchase agreement with consent warranties; lead seller's consent documentation
Limitation: You may still be liable to plaintiff; this creates indemnification claim against vendor
Marketing Agency/Dialer Vendor
Argument: Third-party agency controlled the campaign; you didn't direct specific calls
Evidence needed: Agency agreement, scope of authority, campaign documentation
Limitation: Vicarious liability doctrines may still impose liability on you
Vendor Defenses Are Tricky: Courts often find the business that benefits from calls is liable regardless of who actually made them. Vendor arguments are better for cost-shifting than liability elimination.
Standing and Procedural Issues
Standing/Concrete Injury
Argument: Plaintiff suffered no actual harm - just received unwanted communications
Current status: Post-TransUnion v. Ramirez, some courts require showing of concrete harm beyond statutory violation
Limitation: Highly circuit-dependent; many courts still find TCPA violations create standing
Statute of Limitations
TCPA limitations: 4 years from date of each call/text
Defense application: Calls/texts older than 4 years are time-barred
Discovery rule: Some jurisdictions may toll limitations until plaintiff discovered violation
Arbitration Clause
Defense: If plaintiff agreed to your terms with arbitration clause, may be able to compel arbitration
Evidence needed: Terms of service with arbitration provision; proof plaintiff agreed
Benefit: Individual arbitration eliminates class action risk; often leads to faster resolution
Defense Strength Assessment
Defense
Strength
Best Evidence
Documented written consent
Strong
Timestamped webform with checkbox + IP
Not an ATDS (manual system)
Strong
System documentation, vendor attestation
Transactional calls (not marketing)
Medium
Call scripts, business purpose documentation
Lead seller consent representations
Medium
Purchase agreement, seller's consent proof
Standing/no concrete harm
Weak
Varies by circuit; fact-dependent
EBR defense alone
Weak
Only applies to DNC claims
First Response Template
Important: This template is designed for initial response ONLY. It requests information without making admissions. Do NOT use this if you've already been served with a lawsuit - that requires formal legal response.
When to Use This Template
You received a pre-litigation demand letter from an individual or their attorney
You need to buy time to investigate and assess exposure
You want to understand the specific claims before responding substantively
You have not yet been served with a formal complaint
Request for Particulars Letter
[YOUR COMPANY NAME]
[Address]
[City, State ZIP]
[Date]
VIA EMAIL AND CERTIFIED MAIL
[Claimant Name / Attorney Name]
[Address]
[City, State ZIP]
[Email if known]
Re: Response to TCPA Demand - [Claimant Name]
Dear [Claimant/Counsel]:
We are in receipt of your correspondence dated [date] alleging violations of the Telephone Consumer Protection Act.
We take all compliance matters seriously and are conducting an internal investigation. To properly evaluate the claims raised in your letter, we respectfully request the following information:
1. Identification of Communications
The specific telephone number(s) allegedly contacted
The dates and times of each alleged call or text message
The content or nature of each communication
Any recordings, voicemails, or screenshots of the alleged communications
2. Consent and Relationship History
The circumstances under which [Claimant] provided or allegedly did not provide consent
Any prior business relationship between [Claimant] and [Company]
Any forms, agreements, or webpages through which [Claimant] may have interacted with [Company]
Documentation of any opt-out or revocation requests, including dates and method
3. Claimed Damages
The specific legal bases for the claims (e.g., ATDS, prerecorded voice, DNC)
The number of alleged violations
The calculation methodology for the damages sought
Any actual damages claimed beyond statutory damages
4. Class Action Intentions
Whether [Claimant] intends to pursue individual or class claims
If class claims are contemplated, the proposed class definition
Please provide this information within twenty (20) days. This will enable us to conduct a thorough investigation and respond substantively to the claims raised.
RESERVATION OF RIGHTS
This letter is for settlement purposes only and does not constitute an admission of any fact, liability, or wrongdoing. [Company] expressly reserves all rights, claims, and defenses, including but not limited to defenses based on consent, technology, standing, statute of limitations, and any applicable contractual provisions.
Nothing in this letter shall be construed as a waiver of any right or defense, and this letter shall not be admissible in any proceeding except to demonstrate good-faith participation in pre-litigation resolution efforts.
We look forward to your response.
Sincerely,
[Name]
[Title]
[Company]
[Phone]
[Email]
Key Elements Explained
No-Admission Language
The template includes explicit reservation of rights and non-admission language. This is critical because:
Acknowledging receipt is not admitting liability
Requesting information shows good faith without conceding claims
Settlement communications are generally protected, but explicit language reinforces this
Information Requested
The request serves multiple purposes:
Buys time - 20-day response window gives you time to investigate
Tests seriousness - Unsophisticated claimants may not follow up
Identifies scope - Clarifies if this is individual or potential class
Reveals weaknesses - Claimant's inability to provide details may indicate weak claims
Settlement Discussion Flag
Marking as "settlement purposes" invokes Federal Rule of Evidence 408 protections, making the letter generally inadmissible to prove liability.
After Sending the Response
Next Steps:
Continue internal investigation - don't wait for their response
Prepare exposure assessment based on your records
Identify and preserve consent documentation
Evaluate vendor indemnification options
Consider consulting counsel if exposure is significant
If They Don't Respond
If claimant/counsel doesn't respond to your information request:
Document that you requested information and received no response
This supports any future argument that claims lacked specificity
Do not assume the matter is closed - continue preserving evidence
Statute of limitations continues to run; they may file suit later
If They Respond or File Suit
If they respond with information: Conduct thorough assessment using their specifics; prepare for substantive negotiation
If they file lawsuit: You need formal legal representation; this template is insufficient for litigation response
If attorney is involved: Consider engaging counsel to handle attorney-to-attorney communications
Attorney Services
When Professional Help Makes Sense: TCPA exposure can escalate quickly. While many single-claimant demands can be resolved through negotiation, certain situations warrant attorney involvement to protect your interests.
When to Engage Attorney
High Exposure
Demand exceeds $25,000 or involves large campaign with class potential
Plaintiff's Counsel Involved
Letter comes from law firm, especially known TCPA plaintiff's firm
Multiple Claimants
Multiple people demanding on same campaign = class action precursor
Lawsuit Filed
You've been served with complaint - response deadlines apply
Unclear Consent Records
Can't locate consent proof or records are ambiguous
Vendor Complications
Third-party lead seller or dialer involved; need indemnification analysis
Post-Opt-Out Contacts
You may have continued calling after STOP request - willfulness risk
Insurance Questions
Need to evaluate whether CGL or cyber policy covers TCPA claims
Services Provided
Pre-Litigation Defense
Exposure assessment: Calculate statutory damages range based on call/text volume and consent status
Defense identification: Analyze consent records, technology configuration, and vendor relationships
Evidence preservation: Implement litigation hold and document preservation protocol
Response drafting: Prepare formal response to demand with appropriate reservations
Settlement negotiation: Negotiate resolution with claimant or their counsel
Vendor tender: Prepare indemnification demands to lead sellers or other vendors
Litigation Defense
Answer and affirmative defenses: Formal response to complaint
Motion practice: Motion to dismiss, motion to compel arbitration where applicable
Discovery: Propound and respond to discovery; take depositions
Class certification opposition: Oppose class certification where appropriate
Settlement or trial: Negotiate resolution or defend at trial
Compliance Remediation
Consent flow audit: Review and improve webform consent capture