Two calls. That’s the minimum for a private Do Not Call lawsuit under the federal Telephone Consumer Protection Act, and both have to come within 12 months from or for the same entity, in violation of the FCC’s rules. A call that falls inside an exemption, or inside the time the rules give a business to process a request, doesn’t count toward the two. Counting calls is often the first defense a company has, and its own call records usually settle it.
What does the statute require before a Do Not Call lawsuit?
More than one violating call in a year. The private right of action in 47 U.S.C. § 227(c)(5) belongs to “A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection.” That person may sue for actual monetary loss or “up to $500 in damages for each such violation, whichever is greater,” and a court may increase the award to not more than three times that amount if it finds the violation willful or knowing.
The regulations are the FCC’s Do Not Call rules in 47 C.F.R. § 64.1200(c) and (d). Subsection (c) covers numbers on the National Do Not Call Registry. Subsection (d) requires sellers to keep their own internal do-not-call lists and honor requests made to them. Both feed the same private claim, and each claim needs the two-call threshold.
Do both calls have to violate the rules?
Yes. In § 227(c)(5), the phrase “in violation of the regulations” describes the calls the plaintiff has to count. A first call to a registered number from a company with an established business relationship, or one placed with the person’s permission, isn’t a telephone solicitation under the FCC’s definition, so it can’t be one of the two.
The timing rules matter here too. The FCC’s rule requires a business to honor a do-not-call request “within a reasonable time from the date such request is made,” a period that “may not exceed ten (10) business days from the receipt of such request.” A follow-up call placed two days after a consumer said stop may be inside that window. For Registry claims, the safe harbor in § 64.1200(c)(2)(i)(D) refers to a registry version “obtained from the administrator of the registry no more than 31 days prior to the date any call is made,” which is why the date a number was registered matters as much as the date of the call.
Once the threshold is met, the first call can count for damages. In Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir. 2009), the Sixth Circuit called the two-call language “a threshold requirement that, once met, allows recovery for each call,” and held that “When a first call violating these requirements is followed by a second call also violating the regulations, the statute authorizes damages for both violations.”
Does “same entity” mean the same caller?
Not necessarily. The statute counts calls made “by or on behalf of the same entity,” so two calls from two different vendors selling for one company can add up. A business that spreads campaigns across several call centers should expect a plaintiff to aggregate them.
The reverse is also true. Calls from unrelated sellers don’t combine, even if the same lead list fed both campaigns. When a claimant lists calls from several numbers, the defense work is to tie each call to the company it was made for. Calls that the business can’t connect to itself, or that were placed for another seller, drop out of the count.
That makes caller identity the most useful fact to nail down early. Many demand letters list dates and numbers without showing who placed the calls, and some of those numbers will belong to someone else. A business that knows its own outbound numbers and its vendors’ numbers for the period can usually answer the count in a week.
How are damages counted once the threshold is met?
Per call, at least in the Sixth Circuit. In GVN Michigan, the plaintiff tried to recover separately for each rule a call broke, such as a failure to identify the caller and a failure to honor a prior request. The court held that the damages language “unambiguously allows for statutory damages on only a per-call basis.” That holding keeps the exposure tied to the number of calls, not the number of rules a single call broke.
A single call can still support two awards if it violates two different parts of the statute. In Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011), the Sixth Circuit held that a person may recover under the prerecorded-call provision and the Do Not Call provision “even if both violations occurred in the same telephone call.” A prerecorded sales call to a number on a company’s internal do-not-call list is the common example.
These are Sixth Circuit decisions, and other courts aren’t bound by them. The per-call reading is a strong argument elsewhere because it follows the statute’s text, but a business defending a case in another circuit should check how its own district has counted.
| Situation | Counts toward the two calls? | Where the defense starts |
|---|---|---|
| Call within 10 business days of a stop request | Possibly not | Date the request was received and logged |
| Call to a number registered less than 31 days earlier | Possibly not, under the safe harbor | Registry version date and scrub records |
| Call with the person’s permission or an established business relationship | No, not a telephone solicitation | Consent and purchase records |
| Calls from two vendors selling for one company | Yes, if made on behalf of that company | Vendor contracts and outbound number lists |
| Calls from unrelated sellers | No | Proof of who placed and benefited from each call |
| Two calls more than 12 months apart | No | Call dates |
How does the 12-month window run?
On a rolling basis. The statute says “within any 12-month period,” so the question is whether any 12-month stretch contains two violating calls, not whether both fell in the same calendar year. A call in November and another in March count together.
The practical point is to count before the claimant does. Pull every call and text to the number for the two years before the demand, mark which were telephone solicitations, and set aside the ones covered by consent, a business relationship, or a timing window. That list, built from the business’s own data, often shows the claim resting on one or two calls instead of the dozen in the letter. For a related threshold question, see the earlier post on standing to sue over a single text or call, and for the internal-list rules, the post on internal do-not-call policies.
Text messages raise a separate question. The FCC’s rule states that subsections (c) and (d) apply to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers to the extent described” in its 2003 order, but courts have disagreed about whether a text is a “telephone call” under § 227(c)(5). Businesses that only text should raise that argument along with the count.
What to pull before answering a Do Not Call claim
- Put a hold on call and text logs, dialer and platform data, and consent records for the number, covering at least two years before the demand.
- Export the internal do-not-call list entries for the number, with the date and time each request was received and applied.
- Pull the Registry scrub records and the version date of the registry used for each campaign.
- Gather vendor and lead-source contracts, the outbound numbers each vendor used, and any scripts or prerecorded message files.
- Talk to a lawyer before replying to the demand, calling the claimant, or offering money to settle.
Businesses comparing counsel can learn more from the firm’s TCPA defense attorneys in California page.
Questions about the two-call threshold
Can a single call support a Do Not Call lawsuit?
Not under § 227(c)(5). The statute requires more than one call within 12 months by or on behalf of the same entity, each in violation of the FCC’s rules. A single call might support a different claim, such as one under the prerecorded-voice provision, which has no two-call threshold, so a complaint built on one call usually pleads that theory instead.
Does the first call count toward damages?
It can. The Sixth Circuit held in Charvat v. GVN Michigan that once a person meets the two-call threshold, the statute allows recovery for each violating call, including the first. The first call still has to violate the rules on its own, so a first call made with permission or inside a business relationship isn’t part of the award.
Do calls from our vendor count against us?
They count if they were made on your company’s behalf. The statute counts calls made “by or on behalf of the same entity,” so calls placed by a call center or lead generator selling your products can be added to your own. That makes vendor outbound numbers and call logs part of your defense file, not just theirs.
Are damages per call or per rule broken?
The Sixth Circuit held that Do Not Call damages are per call, not per rule broken within a call. The same court later held that one call can support separate awards under the prerecorded-voice provision and the Do Not Call provision. Courts outside the Sixth Circuit aren’t bound by either decision.
When a Do Not Call claim counts calls that shouldn’t count
If your company is facing a Do Not Call claim, the call dates, the numbers that placed them, and the date of any stop request usually decide whether the two-call threshold is met. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls to numbers on the Do Not Call Registry. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227, and the FCC’s rules are at 47 C.F.R. § 64.1200. The decisions are Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir. 2009) and Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011).
This post is general information about the Telephone Consumer Protection Act and related laws as of June 4, 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.