Damages and remedies under the TCPA

Statutory damages

Section 227(b)(3)(B) provides for recovery of actual monetary loss or $500 in damages for each violation, whichever is greater. Section 227(c)(5)(B) provides for actual loss or up to $500 per violation for do-not-call claims. The plaintiff does not have to show injury beyond the call itself, and statutory damages are elected in almost every case because actual loss from a call is small. Damages are per violation, and a violation is a call or a text. Ten texts to one number is ten violations.

Willful or knowing

Both subsections allow the court, in its discretion, to increase the award to an amount equal to not more than three times the statutory figure if the defendant willfully or knowingly violated the statute or the rules. The statute does not define the phrase. Most courts hold that it requires the defendant to have known it was making the call and known the facts that made the call a violation, not that it knew the law; a minority require knowledge that the conduct was unlawful. The facts that usually carry a willfulness finding are calls after a do-not-call or STOP request, calls after written notice such as a demand letter, and campaigns run with no scrub or consent process at all.

More than one violation per call

A single call can violate § 227(b), for example as a prerecorded call to a cell phone without consent, and § 227(c), as a solicitation to a registered number. Courts have divided on whether a plaintiff may recover under both for the same call; several have allowed it on the basis that the subsections protect different interests and each contains its own remedy. A Florida recipient may also recover under the FTSA for the same call. A defendant modelling exposure should assume that stacking is at least possible.

Injunctions

Both private rights of action allow an action to enjoin the violation. Injunctive relief is sought most often in class actions, where the order can require the defendant to change its practices, and in state attorney general actions under § 227(g). In an individual case the practical remedy is money.

Attorney fees

The TCPA has no fee-shifting provision. A prevailing plaintiff does not recover fees from the defendant, and a prevailing defendant does not recover its fees from the plaintiff, absent a separate basis such as a sanction or a state statute. In class actions, class counsel's fees are paid from the common fund with court approval. This is why individual claims are commonly resolved by demand and settlement before filing, and why defence cost is a real factor in any resolution decision. For a business whose own records confirm the listed calls and show no consent, resolution at the demand stage is ordinarily the lower-cost outcome.

Limitations period

The TCPA contains no limitations period of its own. Federal claims arising under statutes enacted after 1 December 1990 take the four-year period in 28 U.S.C. § 1658(a), and courts apply it to the TCPA. The period runs from each call. A plaintiff filing today can reach calls made within the preceding four years; an older call is time-barred. Some state analogues have shorter periods.

Class actions

Because liability turns on documentary facts, call records, registry status, the presence or absence of a consent record, and because damages are fixed per call, TCPA claims are well suited to Rule 23 certification. The Supreme Court held in Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), that a defendant cannot moot a putative class representative's claim with an unaccepted offer of full individual relief. Class exposure is the number of calls in the class period multiplied by the statutory figure, and settlements are typically a fraction of that number negotiated against the defendant's ability to pay.

Standing

Under Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), a federal plaintiff must show a concrete injury, not a bare statutory violation. Courts have generally held that receiving an unwanted call or text is a concrete injury of the kind Congress meant to address, analogous to the common-law intrusion on seclusion, though some circuits have found a single text insufficient in particular circumstances. The question is live and fact-dependent; a defendant should raise it where the facts support it.

Government enforcement

The FCC may issue citations and forfeiture orders for TCPA violations, and the TRACED Act of 2019 added a forfeiture penalty for intentional violations and lengthened the period in which the Commission may act. The FTC enforces the parallel Telemarketing Sales Rule, including the registry, with civil penalties. State attorneys general may sue in federal court under § 227(g) for a pattern or practice of violations, for injunctions and the same per-violation damages. Public enforcement is directed mainly at large-scale illegal robocalling; private actions are the primary enforcement mechanism against ordinary marketers.

Insurance

Whether a commercial general liability policy covers a TCPA claim depends on its wording. Many policies now contain an exclusion for claims arising from violation of statutes that regulate the sending of material or information, which names the TCPA. Where the exclusion is absent, insurers have argued that statutory damages are penalties rather than "damages" for "bodily injury" or "personal and advertising injury". Results vary by state and by policy. A business facing a claim should give notice under every potentially applicable policy and read the exclusions before assuming either cover or its absence.