TCPA Defense
The exposure math is what drives every TCPA case. Understand it first.
A business gets sued under the Telephone Consumer Protection Act because of a text campaign, a call list, or a fax. The complaint often arrives as a putative class action. The numbers in it look impossible.
They are not impossible. They are arithmetic, and the arithmetic is the whole case.
The damages, and why they matter more than anything else
Under 47 U.S.C. § 227(b)(3), a private plaintiff may recover actual monetary loss or $500 for each violation, whichever is greater.
If the court finds the violation was willful or knowing, the court has discretion to award up to three times that amount — up to $1,500 per violation.
The violation is the call or the text. Not the campaign. Not the customer. Each message. A campaign that sends 40,000 texts, if every one is a violation, carries $20,000,000 of statutory exposure at the base rate. That math is why TCPA class actions exist, and why a case that starts with one annoyed recipient can become an existential threat.
Note the word discretion. Trebling is not automatic, and courts do not agree on what "willful or knowing" even means — some require that the defendant knew its conduct violated the statute; others hold that knowingly making the call is enough. Which standard applies in your forum matters a great deal.
What the statute actually prohibits
The TCPA is not one rule. The claims that generate litigation are:
- Calls or texts to cell phones using an automatic telephone dialing system or an artificial or prerecorded voice, without the required consent
- Calls to numbers on the National Do Not Call Registry
- Prerecorded telemarketing calls to residential lines without consent
- Unsolicited fax advertisements
- Failure to maintain an internal do-not-call policy, which is its own violation
Where these cases are won and lost
Consent
Consent is the central battleground. The questions: what consent was obtained, how was it obtained, what did the consumer actually agree to, and can you prove it? Consent that exists but cannot be documented is, for litigation purposes, consent that does not exist.
Revocation
Consent, once given, can be revoked. The defense questions are whether the revocation was communicated in a reasonable manner, whether it was received, whether it was honored, and how quickly. A business that keeps calling after a clear revocation is the classic fact pattern for a willful or knowing finding.
The dialing system
Whether the equipment used qualifies as an automatic telephone dialing system under the statute has been heavily litigated and the law has moved. This is a technical, evidence-driven question about how the system actually functions — not a label.
Class certification
In a putative class action, certification is usually the whole case. If individualized questions of consent predominate — because different consumers consented in different ways, at different times, through different channels — the class may not be certifiable. A case that cannot be certified is worth a fraction of one that can.
Who made the call
Businesses are frequently sued for calls placed by vendors, lead generators, or marketing partners. Whether the defendant is vicariously liable for those calls is a real defense, and it turns on the actual relationship and the actual control.
What to do if you have been sued
- Preserve everything immediately — call records, consent records, the campaign data, the vendor contracts, the platform logs. Spoliation in a TCPA case is very expensive.
- Do not keep calling the plaintiff. Every additional message is another statutory violation, and it is the fastest way to convert a modest case into a willful one.
- Find out how many messages went out. The exposure calculation drives every strategic decision, and you cannot make one without the number.
- Locate the consent records — and be honest with yourself about what they actually show.
- Notify your insurance carrier. Some policies respond to TCPA claims and many do not, but the notice provisions have deadlines.
- Audit the campaign that is still running. The lawsuit is about yesterday. The exposure is still accruing today.
Frequently asked questions
How much am I exposed to in a TCPA case?
$500 per violation as a statutory floor, and a court has discretion to award up to $1,500 per violation for willful or knowing violations. The violation is each individual call or text, which is why exposure scales with campaign volume rather than with the number of complaining customers.
Are treble damages automatic?
No. The statute gives the court discretion to award up to three times the statutory amount where the violation was willful or knowing. Courts differ on what that standard requires.
Can I be sued for calls a vendor made?
Possibly. Vicarious liability for calls placed by vendors, lead generators, and marketing partners is frequently litigated, and it turns on the actual relationship and the degree of control. It is also a real defense.
What is the single most important document in a TCPA case?
The consent record. Consent that exists but cannot be proven does not help you.
Can these cases be resolved early?
Often, yes — but the number depends entirely on the exposure math and on whether a class is likely to be certified. Both need to be assessed before any conversation about resolution is meaningful.
Discuss a TCPA claim against your business
Vorontsov Law Firm PLLC · 1599 E. 15th St., Ste. 4, Brooklyn, NY 11230
Related: Commercial Litigation · Civil RICO Defense
