If your company calls, texts, or faxes current or potential customers, the Telephone Consumer Protection Act (“TCPA”) should be on your radar. Enacted in 1991, the TCPA established the National Do Not Call Registry and generally prohibits the use of autodialed or prerecorded calls and texts, as well as unsolicited fax advertisements. With statutory damages of $500 per call, text, or fax, and up to $1,500 for willful violations, a single noncompliant marketing campaign could create billions in potential liability.
Thousands of companies are sued for TCPA violations every year, though the focus of litigation has evolved alongside telecommunications technology. Early cases primarily involved unsolicited “junk” faxes, which imposed costs on recipients by consuming paper and printer ink and tying up telephone lines needed for legitimate business purposes. Since fax machines were ubiquitous at the time, Congress enacted the TCPA largely to address these unsolicited fax advertisements and later amended the statute through the Junk Fax Prevention Act, creating certain exceptions to the TCPA’s prohibition on unsolicited fax advertisements. Although fax-related litigation is less prevalent today, it remains a potential source of liability.
TCPA litigation later shifted to claims involving automatic telephone dialing systems (“ATDS”). Although the TCPA defines ATDS as equipment with the capacity to “store or produce telephone numbers to be called, using a random or sequential number generator,” and dial those numbers, courts and the Federal Communications Commissions (“FCC”) long interpreted the statute more broadly. That changed in 2021, when the U.S. Supreme Court held in Facebook, Inc. v. Duguid that only machines capable of storing numbers using a random or sequential number generator and dialing numbers qualify as an ATDS.
Following Facebook, litigation shifted away from autodialers toward unsolicited prerecorded voice messages, calls, or texts; calls or texts placed in violation of the national Do Not Call Registry; and “quiet hours” claims over text messages sent outside of certain hours.Many cases arise from “reassigned numbers,” which occur when a person who consented to receive marketing calls later obtains a new phone number and their old number is reassigned to someone who never consented to receive calls. Because courts have generally held that consent travels with the person, not the telephone number, the new owner may also bring a TCPA claim.
The Supreme Court’s decisions in Loper Bright Enterprises v. Raimondo (2024) and McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp. (2025) added a new layer of uncertainty to TCPA litigation. For decades, courts generally deferred to the FCC’s interpretation of the TCPA. Loper Bright and McLaughlin changed that – courts must now independently analyze the TCPA using ordinary principles of statutory interpretation, prompting renewed challenges to questions long considered settled. Notably, courts historically relied on the FCC’s holding that text messages count as “calls” under the TCPA.But since Loper Bright and McLaughlin, several courts, including recently the Seventh Circuit, have held that text messages are not calls under the TCPA because text messages didn’t exist when Congress enacted the TCPA in 1991. This is one of many developing issues to watch.
Compliance Steps to Implement Now
To maintain compliance against this evolving backdrop, companies should consider the following:
- Consistently reassess marketing policies. Ensure your legal and marketing teams stay abreast of developments. The TCPA is at a volatile point, and your policies and procedures must reflect changes as they happen.
- Track state laws. In addition to the TCPA, there are several state law statutes that govern similar conduct and bring their own potential for liability.
- Exercise good calling list hygiene. Regularly scrub call lists against the National Do Not Call Registry, state Do-Not-Call lists, the Reassigned Number Database, and internal Do Not Call opt-out lists.
- Obtain and document unambiguous consent. Obtain clear consent from individuals and businesses you contact. Review agreements that contain consent-to-communicate clauses to ensure they contain clear consent language and appropriate opt-out mechanisms. Maintain records showing when and how consent was given, and whether individuals or business opted out.
- Observe “quiet hours.” The TCPA precludes marketing calls before 8 a.m. or after 9 p.m. “local time at the called party’s location.” Though few cases have reached the merits, quiet-hours claims are increasing. Companies conducting cross-time-zone marketing campaigns should ensure internal teams and vendors comply with these restrictions.
What To Do If You’re Sued
If a lawsuit is filed despite your best efforts, consider taking the following actions to mitigate your company’s risk.
- Review the alleged facts. TCPA law is rapidly evolving, so claims that were potentially viable in the past may no longer be colorable. The alleged facts are rarely as clear as they seem in a complaint.
- Review current marketing policies. Whether the allegations are accurate or not, a TCPA lawsuit is a good opportunity to revisit your company’s call and text policies to ensure they comply with current law.
- Contact outside counsel. Given the potential damages at stake and the evolving law, consider engaging outside counsel that specializes in defending TCPA claims.
