A letter arrives on letterhead you have never seen. It lists calls your business made, cites a federal statute, puts a dollar figure against each call and gives you a deadline. The sender describes itself as an enforcement group, an advocacy company or a consumer rights firm. This article is for the business owner reading that letter, whether it came from LAC or from a company like us.
Work out who sent it
Three kinds of sender issue TCPA demands. A law firm acting for the person who received the calls. An enforcement company that documents calls and issues demands itself, then refers unresolved matters to counsel. And the individual recipient, writing on their own behalf. The letter should say which it is. LAC is the second kind. We are not a law firm and we say so on every notice.
A genuine demand has call-level detail: the number dialed, the date and time in the recipient’s time zone, what was said or sent, and the Do Not Call Registry status of the number. It names the provision breached and the statutory damages that attach to it. It gives a reference, a deadline and a written channel to respond. It does not ask for payment by gift card, cryptocurrency or transfer to an individual, and it does not threaten arrest. If the letter you hold has a threat and no call list, treat it with suspicion. If it has the call list, go and find the calls.
What the letter is claiming
The Telephone Consumer Protection Act, 47 U.S.C. § 227, gives the person who received an unlawful call the right to sue for $500 per violation. A court can raise that to $1,500 where the conduct was willful or knowing. Each call or text is a separate violation. Calls to a number on the National Do Not Call Registry, prerecorded or artificial voices without written consent, calls outside permitted hours, messages after a STOP request and calls that do not identify the business are the breaches that appear most often. Florida and several other states add statutes of their own on top.
Two points catch businesses out. The first is that the business is answerable for calls made on its behalf. A lead generator, a call centre or a texting platform that dialed for you does not take the liability with it. The second is that the burden of proving consent sits with the caller. If you cannot produce the record, the law treats the call as made without it.
Your four options and what each one costs
You can resolve the matter on the terms offered. You hear nothing further and the file closes. You can dispute specific items in writing, with records. A dispute that shows the calls were not yours, or that written consent existed, is reviewed against the record and the items that fail come off. You can negotiate terms within the deadline. Or you can ignore the letter, which is a decision too, and the one that costs the most. We set out the consequences in what happens if you ignore a TCPA demand letter.
The order to do things in
- Preserve everything. Dialer logs, consent records, vendor contracts, the lead file. Deleting records after a demand is received is the fastest way to turn a $500 violation into a $1,500 one.
- Find each call in your own records. If you cannot find it, find out who placed it on your behalf.
- Check the consent position for each number. Not whether you believe you had consent, but whether you can produce the record.
- Work the exposure. Count the violations, multiply, and add the state statute if one applies. Then compare it to the demand. The method is in should you settle a TCPA demand letter.
- Decide before the deadline and respond in writing to the reference on the notice. An extension request made before the deadline is usually granted. One made after it is not.
A business with counsel should put the letter and the records in front of them. Nothing here is legal advice.
Why most of these matters end in a resolution
A demand is an offer to close a matter for less than its statutory value, before it is referred to a law firm. A business whose dialer logs confirm the calls, and whose consent file is thin, has an exposure figure that is a multiple of the demand and a defence that will cost money whether it wins or loses. For that business, resolving at the demand stage is the cheaper decision by a wide margin, and it is usually the one its own counsel recommends. A business whose records show the calls were not its own has a dispute, and should make it, with the records attached.
The step-by-step guide for a letter from us is at I received a letter. Now what?. The questions we are asked most are answered on the FAQ.