TCPA Demand Letters: How a Business Evaluates and Answers One

A TCPA demand letter isn’t a lawsuit, and nothing in the statute requires a business to pay it, or even answer it, by the deadline the letter sets. It does make the next few weeks matter. That’s when a company finds out whether the claimed calls are really its own and whether a payment would actually end the matter. In my view, a business that tests the letter against its own records before it responds usually has more room to negotiate than the letter suggests.

Is this a form letter from a repeat filer?

It often is, in my view, and that changes how you read it, though not whether you take it seriously.

The signs I look for are a table of calls or texts with every one multiplied by the trebled figure, citations to statutes that don’t fit the conduct, and a short deadline for a “pre-suit” payment. The letter may come from the claimant or from a lawyer. Either way, search the claimant’s name early in the federal courts’ PACER system and the local superior court index. If there’s a long filing history, I’d assume the claimant knows the statute and kept good records of every call.

That cuts both ways. I don’t think a filing history is a defense by itself, and a response that calls the claimant a professional plaintiff accomplishes nothing. What a history does is tell you what kind of negotiation you’re in and whether the number that got your calls may exist mainly to attract them. Our earlier post on serial TCPA plaintiffs covers how courts have treated that argument and the discovery that builds it, so I won’t repeat it here.

Do the claimed calls match your records?

Check every line before you discuss a number. The count in a demand letter is the claimant’s version, and in my view it’s the first number worth testing.

Pull the dialer and texting-platform records for the number, including anything your vendors sent on your behalf. Match each call or text the letter lists by date and time, then by the number it came from. Then sort the list into groups: calls you have no record of, calls your records show were made with consent, calls made after an opt-out, and calls to a Registry number with no established relationship. The first group deserves a hard look. A call that isn’t in your logs may have come from a vendor you’ll need to ask about, or from a different company using a number that looks like yours.

Then check the letter’s legal math against what the statute actually provides. A Do Not Call claim requires that the person “received more than one telephone call within any 12-month period by or on behalf of the same entity,” under 47 U.S.C. § 227(c)(5), so calls more than 12 months apart may not add up to a Do Not Call claim at all. Our post on TCPA damages exposure walks through the per-call math and when trebling applies. In my view, a business that can show the letter overcounts by even a third has changed the negotiation, because the claimant now knows the company has its records in order. If the number is a business line, our post on TCPA claims over business phone numbers covers that defense.

Is what you write back protected?

Partly. Settlement offers and negotiations are hard to use against you to prove liability, but the protection is narrower than most people assume.

In federal court, Federal Rule of Evidence 408 bars evidence of a compromise offer and of “conduct or a statement made during compromise negotiations about the claim” when it’s offered “either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” The rule then lets a court admit the same evidence “for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

California’s version, Evidence Code § 1152, covers an offer of money or anything else in compromise, “as well as any conduct or statements made in negotiation thereof,” which “is inadmissible to prove his or her liability for the loss or damage or any part of it.” Both rules are about admissibility. Neither one turns a letter into a secret.

A label doesn’t help much either. In Rhoades v. Avon Products, a company used a letter from Avon’s counsel threatening a trademark suit to establish jurisdiction for a declaratory-relief action, even though the letter stated it was “written for settlement purposes only and shall not be admissible for any purpose in any legal proceeding.” The Ninth Circuit called the argument that this barred any use of the letter “not an accurate statement of the law,” and held that “Notwithstanding the letter’s attempt to claim an absolute privilege, therefore, statements made in settlement negotiations are only excludable under the circumstances protected by the Rule.”

Discovery is a separate question, and federal appeals courts have split on it. The Sixth Circuit held in Goodyear Tire & Rubber Co. v. Chiles Power Supply, which involved a third party’s attempt to discover settlement talks, that “In sum, any communications made in furtherance of settlement are privileged.” The Federal Circuit declined to recognize a privilege for settlement negotiations over patent royalties and damages in a 2012 case, In re MSTG, concluding that “an across-the-board recognition of a broad settlement negotiation privilege is not necessary to achieve settlement.”

So I’d write every response as though a judge, or the lawyer for a future class, will read it someday. Keep factual statements accurate and few. A letter that explains how your dialer works, or admits a vendor “sometimes” ignores opt-outs, gives away facts that the rules may not keep out. In my view, a letter that only argues the facts and offers nothing may not count as compromise negotiations at all.

Which release and confidentiality terms protect the business?

The release is what you’re paying for, so read it harder than the dollar figure. A narrow release buys a short peace.

The unknown-claims point comes from California law. Civil Code § 1542 provides that “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Without a knowing waiver, a claimant can argue that calls they hadn’t noticed yet survived the release.

Confidentiality deserves a real negotiation in these cases. I think it’s worth more to a company that calls or texts at volume than to almost any other kind of defendant, because the settlement figure is the most useful fact a claimant’s lawyer can learn.

Should the company pay now or wait to be sued?

It depends on what the records show, and I’d rarely do either reflexively.

Paying early makes sense when the count holds up, consent is thin, the demand is close to the cost of defending a filed case, and the practice that caused the calls has already been fixed. Paying while the same campaign is still running buys very little, because the next recipient has the same claim. And a payment to one claimant resolves only that claimant. Everyone else who got the same calls keeps whatever claims they had, so a letter that hints at a class deserves a harder look at how many others were called.

Waiting makes sense when the records contradict the letter, when consent is documented, or when the demand assumes trebling and stacking the facts can’t support. There’s no legal duty to answer by the claimant’s deadline, though the duty to preserve records starts early. In federal court, if electronic records “that should have been preserved in the anticipation or conduct of litigation” are lost because a party didn’t take reasonable steps to keep them, and they can’t be restored or replaced, a judge can order measures to cure the prejudice to the other side. The harshest sanctions, such as an adverse-inference instruction or a default, require a finding of intent to deprive, under Federal Rule of Civil Procedure 37(e). A demand letter is a strong sign that litigation is coming. If a complaint follows, our post on the first steps after being sued under the TCPA picks up from there.

Two practical checks apply either way. Before agreeing to anything, read the company’s liability policies for notice requirements and any bar on voluntary payments made without the insurer’s consent. And in my view, a short letter from counsel asking the claimant for the call details and dates is often worth more than an immediate counteroffer.

What should change in the calling program after the letter?

Stop calling the claimant’s number first, then fix whatever produced the calls, and preserve the old records before you change anything.

I’d treat the letter itself as a do-not-call request and stop relying on any consent the claimant gave. The FCC’s rules say a company making telemarketing calls that receives a residential subscriber’s request not to be called “must record the request and place the subscriber’s name, if provided, and telephone number on the do-not-call list at the time the request is made.” The company must honor the request within a reasonable time, and “This period may not exceed ten (10) business days from the receipt of such request,” under 47 C.F.R. § 64.1200(d)(3). In my view, a call to the number after the letter is the easiest willfulness argument a claimant will ever get.

Then audit the process the letter exposed. The Registry rules give a company a defense when a violation “is the result of error” and it follows set standards as a routine practice, including written procedures, training, an internal do-not-call list, and use of a Registry version obtained “no more than 31 days prior to the date any call is made,” per § 64.1200(c)(2)(i). The statute adds its own affirmative defense for a company that “has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations,” in § 227(c)(5). I think of a demand letter as the cheapest compliance audit a company will get. Our post on running a privileged TCPA compliance audit covers how to keep that review privileged.

Fixing the problem isn’t a confession. Federal Rule of Evidence 407 provides that “evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction,” and California’s Evidence Code § 1151 makes such measures “inadmissible to prove negligence or culpable conduct in connection with the event.” Rule 407 still lets a court admit the evidence for other purposes, such as impeachment. The bigger risk is practical: a platform migration or settings change can overwrite the very logs that would have answered the letter, so export them first.

Before anyone replies to the letter

1. Put a litigation hold on the call and text logs, platform data, and consent records for the claimant’s number, and ask each vendor in writing to preserve theirs.
2. Export the opt-out history and internal do-not-call entries for the number, with the date each was recorded.
3. Pull the Registry scrub records and the version dates used for every campaign that reached the number.
4. Gather the vendor and lead-source contracts, the scripts and message templates, and any recorded or AI-voice files that played on the calls.
5. Talk to a lawyer before anyone replies to the claimant, calls the number, or proposes a payment.

If a demand letter turns into a proposed class action, the firm’s page on defending TCPA class actions in California covers what comes next.

Questions businesses ask about TCPA demand letters

Do we have to respond to a TCPA demand letter?

Nothing in the TCPA requires a business to answer a private demand letter by the date it sets. Silence has costs, though. It ends any chance to correct a bad call count before a complaint is filed, and it can push a claimant who would have settled quietly into court. In my view, a short, careful response from counsel, or a request for the details behind the claim, is usually better than either a long explanation or no answer.

Can the claimant’s lawyer agree not to bring more claims against us?

No, not under California’s rules. Rule 5.6 of the California Rules of Professional Conduct says a lawyer may not “participate in offering or making” “an agreement that imposes a restriction on a lawyer’s right to practice in connection with a settlement of a client controversy, or otherwise.” So your own lawyer can’t propose that term, and the claimant’s lawyer can’t accept it. The rule’s comment explains that it “prohibits a lawyer from offering or agreeing not to represent other persons” when settling a client’s claim. The claimant can release their own claims, but their lawyer stays free to represent the next person.

Should we keep calling the number while we evaluate the letter?

No. Suppress the number across every platform and vendor the day the letter arrives. In my view, calls after a clear stop request are the facts most likely to support a finding that a violation was willful or knowing, and a letter from the claimant or their lawyer will often be read as that request. Stopping costs one customer’s calls. Continuing can add new violations to a claim you’re trying to shrink.

Does paying one claimant stop a class action?

No. A settlement with one person resolves that person’s claims, not the claims of anyone else who received the same calls or texts. If a campaign reached thousands of numbers, the same lawyer or another one can bring a class case later on behalf of the others. That’s why the decision to pay should come after a look at how many people the practice reached and whether it has stopped.

When a TCPA demand letter arrives

If your company has received a TCPA demand letter, the records you pull this week and the first words you put in writing will shape everything that follows. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including pre-suit demand letters over calls and texts. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as in effect on August 8, 2026. The preservation rule is Federal Rule of Civil Procedure 37(e). The evidence rules are Federal Rule of Evidence 408, Federal Rule of Evidence 407, California Evidence Code § 1152, and California Evidence Code § 1151. The release statute is California Civil Code § 1542, and the ethics rule is California Rule of Professional Conduct 5.6.

The court decisions are Rhoades v. Avon Products, Inc., 504 F.3d 1151 (9th Cir. 2007); Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003); and In re MSTG, Inc., 675 F.3d 1337 (Fed. Cir. 2012).

This post is general information about the Telephone Consumer Protection Act and related laws as of August 8, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.