TCPA – Defending Your Claim

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    Defending Your TCPA Claim —

    What Companies Will Argue & How to Respond

    This guide is for educational purposes. It is not legal advice. Always consult a licensed attorney before taking legal action.

    1. “You Gave Us Consent”

    What They’ll Say:
    The company will claim you provided your number on a website, a contest form, or through another business relationship — giving them permission to call or text you.

    How to Counter:

    • Ask for proof. Request the original consent record — not just a spreadsheet entry.

    • Examine the fine print. Was consent “clear and conspicuous” and did it specifically name the company contacting you?

      • For marketing/prerecorded calls, the TCPA requires prior express written consent.

    • Check timestamps & IP addresses. Do they match your location/device at the time?

    • Look for lead vendor issues. If consent came from “marketing partners,” that’s often too vague to be valid.

    2. “We’re Not the Caller”

    What They’ll Say:
    They might argue another company made the call and they had no control — even if the call promoted their product.

    How to Counter:

    • Establish “vicarious liability.” Show the caller was acting as their agent, affiliate, or lead vendor.

    • Document branding. If the call mentioned their name, website, or product, that ties them to the contact.

    • Request contracts. Ask for agreements between the brand and the marketer/lead generator — these often show direction or approval.

    3. “It Wasn’t an Autodialer”

    What They’ll Say:
    They’ll argue they used manual dialing or technology that doesn’t meet the legal definition of an “automatic telephone dialing system” (ATDS).

    How to Counter:

    • Focus on prerecorded/artificial voice — still illegal without proper consent regardless of ATDS status.

    • Get technical proof. Subpoena call logs, platform details, and API records from Twilio, Bandwidth, etc.

    • Note call patterns. High-volume, identical calls at regular intervals suggest automation.

    4. “You’re a Business, Not a Consumer”

    What They’ll Say:
    The TCPA’s protections don’t apply to business numbers (especially for certain types of calls).

    How to Counter:

    • Confirm the line’s status. If you primarily use it for personal purposes, gather bills, usage logs, or account details showing personal use.

    • Argue the “residential” use angle — some courts treat home-based or personal-use business lines as covered.

    5. “We Didn’t Intend to Violate the Law”

    What They’ll Say:
    They may claim any violation was accidental and not “willful or knowing,” trying to avoid the higher $1,500-per-call damages.

    How to Counter:

    • Show they knew or should have known. Evidence of multiple calls after a stop request or after seeing your Do Not Call (DNC) registration supports willfulness.

    • Highlight lack of compliance systems. If they don’t keep consent records or scrub against the DNC list, that’s negligence.

    6. “We’re Exempt”

    What They’ll Say:
    Certain calls are exempt — e.g., purely informational calls, political calls, some debt collection.

    How to Counter:

    • Look for hidden marketing. If the call contains any sales pitch, upsell, or lead generation, the exemption likely doesn’t apply.

    • Match the exemption criteria. For example, debt collection calls must be about an actual, existing debt you owe.

    7. “We Honored Your Do Not Call Request”

    What They’ll Say:
    They might argue they stopped calling within the allowed 30-day window or never received your request.

    How to Counter:

    • Keep proof of your request. Screenshots of texts, email confirmations, or recordings help.

    • Track post-request calls. Any call after 30 days (or after your request if internal policy says sooner) can be a violation.

    • Ask for their internal DNC list — compare it to your number’s history.

    8. “You’re a Professional Plaintiff”

    What They’ll Say:
    Some companies try to discredit consumers by suggesting they’re exploiting the law for profit.

    How to Counter:

    • Stay factual and calm. Avoid exaggerating and stick to the evidence.

    • Show you’re acting in good faith. Emphasize your stop requests, evidence-gathering, and genuine inconvenience.

    Practical Tips for Consumers

    • Document everything. Keep call logs, recordings, and screenshots in date order.

    • Use certified mail for demands and preservation letters to create a paper trail.

    • Don’t tip your hand too soon. Gather your facts before confronting the company.

    • Leverage both TCPA & state laws. Some states have stronger protections and additional penalties.