Cold Calling
& TCPA

TCPA framework

47 USC §227 governs unsolicited telephone marketing. Core provisions:

• Prior express written consent required for autodialed/prerecorded calls and texts to wireless
• No calls to DNC-registered numbers without exemption
• Hours restrictions: 8 AM – 9 PM local time
• Internal DNC list — must honor opt-out within 30 days
• Caller ID transmission required
• Statutory damages $500 per violation, $1,500 willful, private right of action

Facebook v. Duguid (2021) — ATDS narrowed

Supreme Court 2021 narrowed the definition of Automatic Telephone Dialing System (ATDS): must randomly or sequentially generate numbers. Calling from a stored list (like most investor dialers) generally no longer triggers ATDS restriction for federal TCPA. However, §227(b) prohibition on prerecorded voice messages without consent remains, as does DNC compliance.

State mini-TCPA laws

• Florida FTCPA (2021). Stricter than federal. Express written consent required for telemarketing calls regardless of ATDS. $500–$1,500 per violation + attorney fees. Heavily litigated.
• Oklahoma mini-TCPA. Similar structure.
• Washington. Stricter state rules.
• California. CPRA privacy rules overlap.
• Many others. Do Not Call statutes, telemarketing registration, specific disclosure requirements.

Investor operating multi-state must comply with strictest jurisdiction. Florida FTCPA has set the post-Duguid compliance floor.

DNC compliance

• Federal DNC registry. Scrub lists monthly. Purchase access from DNC.gov ($66 per area code annually).
• Internal DNC list. Honor opt-outs within 30 days. Maintain list indefinitely.
• State DNC lists. Many states maintain separate lists. Scrub per state.
• Exemptions. Existing business relationship (purchased from you within 18 months, inquired within 3 months). Narrow — most cold calls don’t qualify.

SMS marketing

• Express written consent. Required before marketing SMS to wireless number. Must include: specific disclosure of consent, program name, opt-out instructions, frequency, message-and-data-rates disclosure.
• STOP honor. Opt-out immediate. Confirm via single STOP- confirmation text.
• Frequency disclosure. "Up to 4 msgs/month" or similar.
• 10DLC registration. A2P (application-to-person) messaging requires brand registration via The Campaign Registry for direct operator delivery in US.
• Compliant platforms. REI Reply, BatchLeads, Lead Sherpa, Twilio (requires your own compliance).

List washing

• DNC scrub. Federal + state DNC lists.
• TCPA filter. Remove serial plaintiffs and known litigators (Casework of America, Gryphon, TCPA Central, Phone Data Source).
• Wireless identification. Flag wireless numbers for consent-required treatment.
• Reassigned number database. FCC-mandated Reassigned Numbers Database (RND) — check before calling. Safe harbor if "check and rely" on RND.
• Deceased / disconnect. Remove clearly dead leads.

Call recording

• One-party consent states (39). Can record if you’re a party. Federal default.
• Two-party (all-party) consent states (11). CA, FL, IL, MA, MD, MI, MT, NV, NH, PA, WA. All parties must consent. Disclosure at call start.
• "This call may be recorded" disclosure. Standard at call start. Caller can hang up if doesn’t consent.

Dialers

• Predictive dialer. Calls multiple lines simultaneously, connects to agent when answered. Post-Duguid, likely not ATDS if calling stored list. But FTCPA and state laws may restrict.
• Power dialer (human-initiated). Human clicks to initiate each call. Argued not ATDS. Mojo, BatchDialer, PhoneBurner.
• Manual dialing. Safest. Slower. Not ATDS.
• Ringless voicemail. FCC ruled 2022 as ATDS under some interpretations. Court challenges ongoing. Risky.

Major TCPA verdicts

• Dish Network 2017 — $280M TCPA settlement
• Capital One 2014 — $75M settlement
• Caribbean Cruise Line 2016 — $76M
• Various real estate wholesalers — $250k–2M settlements

Real estate investor class actions now common. Plaintiff firms scraping public wholesaler websites, filing class cases on TCPA violations.

Common pitfalls

• SMS blast without consent. 5,000 unsolicited texts. TCPA + FTCPA class action. $2.5M–15M exposure.
• Ignoring opt-out. Recipient texts STOP. Continued messaging. Clear violation, statutory damages.
• Predictive dialing in FL. FTCPA stricter than federal. Predictive dialer without consent = violation regardless of ATDS question.
• Reassigned number. Called number reassigned to different person. No safe harbor without RND check. Class plaintiff.
• 2-party recording violation. Recording in CA/FL/IL without disclosure = criminal wiretapping charge + civil damages.
• DNC not scrubbed monthly. DNC registration updates weekly. Month-old list = calls to newly-registered consumers.
• Ringless VM. FCC scrutinized. Plaintiff firms targeting. Avoid.
• Serial plaintiff on list. Known plaintiff receives your text. Immediate class action. Scrub against TCPA plaintiff databases.