A robocall is an unsolicited telephone call made using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice message. Under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, companies that make robocalls or send automated text messages to consumers without their prior express consent may be liable for statutory damages of $500 per violation, or $1,500 per violation if the conduct was willful or knowing. Each individual call or text message constitutes a separate violation under the statute.
The TCPA was enacted by Congress in 1991 to address the growing problem of unsolicited telemarketing calls and has since been expanded to cover text messages, which the Federal Communications Commission (FCC) has determined are "calls" within the meaning of the statute. The TCPA is enforced both by the FCC and through private lawsuits brought by individual consumers.
What the TCPA Covers
What Counts as a Robocall or Autodialer
Under 47 U.S.C. § 227(a)(1), an automatic telephone dialing system (ATDS) is equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers. In the landmark case of Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), the Supreme Court held that to qualify as an ATDS, the equipment must use a random or sequential number generator to either store or produce the numbers called. This narrowed the definition of ATDS from what some lower courts had previously applied.
Even after Duguid, the TCPA continues to prohibit calls made with an artificial or prerecorded voice to cell phones without consent, regardless of whether an ATDS was used. This means that if a company sends you a prerecorded voice message or an automated text message without your consent, you may still have a claim under the TCPA.
Text Messages as Calls
The FCC has consistently ruled that text messages, including SMS and MMS messages, constitute "calls" under the TCPA. This means that the same rules that apply to robocalls also apply to automated or marketing text messages. Each unsolicited text sent using an ATDS or without the recipient's prior express consent may constitute a separate TCPA violation.
Consent Requirements
The TCPA establishes different levels of consent depending on the type of call or text:
- Prior express consent: Required for non-marketing automated or prerecorded calls to cell phones. This consent can be oral or written and may be established through providing your phone number to a company in connection with a transaction.
- Prior express written consent: Required for telemarketing or advertising calls and texts made using an ATDS or prerecorded voice to cell phones. Under 47 C.F.R. § 64.1200(f)(9), this consent must be in writing (including electronic signatures), clearly authorize the specific caller to deliver such messages, and include the telephone number to which the messages may be sent. The written consent must not be a condition of purchasing any good or service.
Consent may be revoked at any time and through any reasonable means. The FCC has ruled that consumers may revoke consent orally, in writing, by text message, or by any other reasonable method. Once you revoke consent, any subsequent calls or texts may violate the TCPA.
The National Do Not Call Registry
The TCPA established the National Do Not Call Registry, maintained by the Federal Trade Commission, at donotcall.gov. Once you register your phone number, telemarketers must stop calling you within 31 days. Violations of the Do Not Call Registry provisions may also give rise to a private right of action under the TCPA.
The Do Not Call Registry does not prevent all calls. Exemptions exist for calls from political organizations, charities, telephone surveyors, and companies with which you have an existing business relationship. However, even exempt callers must comply with time-of-day restrictions (no calls before 8:00 AM or after 9:00 PM in the called party's local time) and must honor requests to be placed on the caller's internal do-not-call list.
Under 47 U.S.C. § 227(c) and FCC regulations at 47 C.F.R. § 64.1200(d), companies that make telemarketing calls must maintain their own internal do-not-call lists. If you ask a specific company to stop calling you, that company must honor your request. Failure to do so may constitute a separate violation of the TCPA.
Common Violations
The following are among the most frequently encountered TCPA violations:
- Robocalls without consent: Making calls using an ATDS or prerecorded voice to a cell phone without the recipient's prior express consent.
- Marketing texts without written consent: Sending promotional or advertising text messages without obtaining prior express written consent from the recipient.
- Continuing calls after consent revocation: Failing to stop calling or texting after the consumer has clearly revoked consent, whether orally, in writing, or by text.
- Ignoring Do Not Call requests: Continuing to make telemarketing calls to a number registered on the National Do Not Call Registry, or failing to honor a request to be placed on the company's internal do-not-call list.
- Abandoned calls: Under FCC regulations, if a live operator is not available to speak with the person answering within two seconds, the call is considered "abandoned." Companies that abandon more than three percent of their outbound calls in a 30-day period may be in violation.
- Spoofed caller ID: While caller ID spoofing is primarily addressed by the Truth in Caller ID Act, calls using misleading or false caller ID information in connection with robocalls may support broader TCPA claims.
- Prerecorded messages to residential landlines: The TCPA also prohibits prerecorded telemarketing calls to residential landline phones without prior express written consent (47 U.S.C. § 227(b)(1)(B)).
Your Rights Under the TCPA
- Right to be free from unwanted robocalls. Companies may not call your cell phone using an ATDS or prerecorded voice without your prior express consent (47 U.S.C. § 227(b)(1)(A)).
- Right to revoke consent. You may revoke previously given consent at any time and by any reasonable means, including by telling the caller to stop, sending a text message reply such as "STOP," or sending written notice.
- Right to register on the Do Not Call list. You may register your number at donotcall.gov, and telemarketers must respect your registration within 31 days (47 U.S.C. § 227(c)).
- Right to request placement on internal do-not-call lists. You may ask any specific company to stop calling you, and that company must maintain and honor its internal do-not-call list (47 C.F.R. § 64.1200(d)).
- Right to sue. You may bring a private lawsuit in state court under 47 U.S.C. § 227(b)(3) to recover damages for TCPA violations.
Damages Available
Under 47 U.S.C. § 227(b)(3), a consumer who receives calls in violation of the TCPA may recover:
| Damage Type | Amount |
|---|---|
| Statutory damages | $500 per violation (each call or text is a separate violation) |
| Treble damages (willful violations) | Up to $1,500 per violation if the court finds the defendant willfully or knowingly violated the TCPA |
| Injunctive relief | Court order requiring the defendant to stop the unlawful calls or texts |
Because each individual call or text message counts as a separate violation, damages can accumulate quickly. A consumer who received 50 unauthorized text messages, for example, could potentially recover $25,000 in statutory damages, or $75,000 if the violations were willful.
How to Document Violations
Building a strong TCPA case requires careful documentation. If you are receiving unwanted robocalls or spam texts, we recommend the following steps:
- Do not delete text messages. Save every unwanted text message you receive. Take screenshots showing the sender's number, the content of the message, and the date and time.
- Log every call. Keep a written record of each unwanted call, including the date, time, phone number displayed on caller ID, whether a prerecorded message was played, and any information about the caller or company.
- Save voicemails. Voicemail recordings can serve as evidence that a prerecorded voice was used, which is a key element of a TCPA claim.
- Document your consent revocation. If you have asked the caller to stop, document the date and method of your revocation. If you sent a text reply such as "STOP," take a screenshot. If you sent a written letter, keep a copy and the certified mail receipt.
- Check the Do Not Call Registry. Verify that your number is registered and note the date of registration. You can check your registration status at donotcall.gov.
- Identify the caller. Try to determine the actual company responsible for the calls, not just the number displayed on caller ID (which may be spoofed). Information in the message content, callback numbers, or company names mentioned can help identify the responsible party.
How We Can Help
Rausa Russo Law, PLLC represents consumers throughout New York and, through our network of trusted consumer protection attorneys, across the country in TCPA claims. Our approach includes:
- Free case evaluation. We review your documentation and assess the strength of your TCPA claim, including estimating the number of violations and potential damages.
- Identification of responsible parties. Robocallers often use spoofed numbers and shell companies. We work to identify the actual entities responsible for the calls.
- Litigation in state or federal court. We file lawsuits against companies that violate the TCPA, seeking statutory damages for each unauthorized call or text.
- Transparent fee discussion. Because the TCPA does not provide fee-shifting for individual plaintiffs, we discuss fee arrangements openly during your free consultation so you understand the economics of your case before proceeding.
Frequently Asked Questions
Under 47 U.S.C. § 227(b)(3), you may recover $500 in statutory damages for each violation. If the court finds the caller willfully or knowingly violated the TCPA, it may treble the damages to $1,500 per violation. Each individual call or text message counts as a separate violation, so damages can accumulate significantly for consumers who have received numerous unwanted communications.
Under the TCPA, a robocall is any call made using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to a cell phone without the recipient's prior express consent. Following the Supreme Court's decision in Facebook, Inc. v. Duguid (2021), an ATDS must use a random or sequential number generator to either store or produce the numbers called. However, calls made with prerecorded or artificial voice messages remain prohibited regardless of the dialing method used.
No. Unlike the FCRA and FDCPA, the TCPA does not include an attorney fee-shifting provision for individual plaintiffs. The defendant is not required by statute to pay your attorney's fees even if you win your case. This is an important distinction from other consumer protection statutes. At Rausa Russo Law, we evaluate each TCPA case individually and discuss fee structures during your free consultation so you can make an informed decision.
Yes. The FCC has ruled that text messages are "calls" under the TCPA. Sending automated or marketing text messages to a cell phone using an ATDS or without the recipient's prior express consent (or prior express written consent for marketing messages) may violate 47 U.S.C. § 227(b)(1)(A). Each unauthorized text counts as a separate violation, potentially entitling you to $500 to $1,500 per text.
Start by registering your phone number on the National Do Not Call Registry at donotcall.gov. For specific companies, revoke your consent in writing by sending a clear request to stop all calls and texts. Document everything: save text messages, take screenshots, note the date and time of each call, and record voicemails. If the unwanted calls continue after you have revoked consent or registered on the Do Not Call list, contact a consumer protection attorney to evaluate your potential TCPA claim.