Telephone Consumer Protection Act (TCPA)

The TCPA restricts calls made using an ATDS — defined as equipment with the capacity to store or produce telephone numbers using a random or sequential number generator, AND to dial those numbers. Post-Facebook v. Duguid (2021), the Supreme Court narrowed this definition significantly: a device must use a random or sequential number generator to qualify. Predictive dialers that call from a stored list are not necessarily ATDS under this definition — but many state mini-TCPA laws define ATDS more broadly.

Consent requirements vary by channel and whether an ATDS is used. (1) Non-ATDS voice calls to landlines: no TCPA consent required, but state law may apply. (2) ATDS or prerecorded calls to landlines: prior express consent. (3) ATDS, AI voice, or prerecorded calls to cell phones: prior express written consent. (4) SMS using ATDS: prior express written consent. Written consent must be a clear and conspicuous disclosure in writing, signed by the consumer, authorizing calls from a specific entity.

Effective January 27, 2025, the FCC's one-to-one consent rule requires that each consumer consent to calls/texts from one specific company at a time — not a bundled consent for multiple sellers. Lead generation forms that collect consent for dozens of companies simultaneously are no longer compliant. Each seller must be named, and the consent must be logically and topically related to the website where it's collected. This rule substantially changes how lead gen companies operate.

The federal TCPA restricts calls to residential landlines to 8:00 AM – 9:00 PM in the called party's local time. This is the federal floor. Many states impose stricter windows — Florida, for example, restricts calls to 8:00 AM – 8:00 PM. Calling outside your state's window is a state violation even if it falls within federal hours.

The FTC's National DNC Registry requires telemarketers to scrub their calling lists against the registry every 31 days. Residential numbers registered on the NDNC cannot be called unless the consumer has an existing business relationship (EBR) with the caller, or has given prior express written consent. EBR expires 18 months after the last purchase/transaction, or 3 months after an inquiry. DNC violations carry $51,744 per violation (FTC) — separate from TCPA statutory damages.

The TCPA provides statutory damages of $500 per violation for standard violations and $1,500 per violation for willful or knowing violations. Courts have discretion to treble (triple) damages for willful violations. There is no cap on class action damages — a campaign of 100,000 illegal texts at $500/text = $50 million in exposure before any multiplier. The TCPA has a 4-year statute of limitations under federal law, though states may have different periods.

The TCPA has an explicit private right of action — any individual who receives a violating call or text can sue directly in federal or state court, with no need to prove actual damages. This makes class action TCPA litigation extremely common and extremely expensive. A single autodial campaign to unconsented numbers can generate a class of hundreds of thousands of plaintiffs. TCPA class actions routinely settle for $10M–$100M+.