Sued Under the TCPA? A Business’s First Steps in California
A business that receives a TCPA demand letter or complaint should do five things quickly: preserve its call and consent records, identify which TCPA theory the claimant is using, test consent and vendor liability, check for an arbitration clause, and assess the forum. Most TCPA claims turn on records the company already has. A business that moves early usually has more defenses than the first letter suggests, and fewer surprises later.
Step 1: Preserve the records
Put a litigation hold in place the day the claim arrives. TCPA cases are won and lost on dialer logs, texting platform data, consent records, opt-out logs, and Registry scrub records, and many systems overwrite data on a schedule. A defense built on missing records is a weak one, and a court can draw inferences against a company that let evidence disappear after it knew of a claim.
Step 2: Identify the theory
Every TCPA claim fits a narrower box than the demand letter’s rhetoric suggests. The main ones are recorded or AI-voice calls without consent, autodialed calls without consent, sales calls to Registry numbers, calls after a stop request, and sales calls outside 8 a.m. to 9 p.m. The first two carry $500 per call under 47 U.S.C. § 227(b)(3). The rest run through § 227(c)(5), which requires “more than one telephone call within any 12-month period by or on behalf of the same entity” before a claim exists.
Two recent rulings narrow those theories. The Supreme Court limited autodialers to equipment with “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called” in Facebook, Inc. v. Duguid, and the Seventh Circuit held in Steidinger v. Blackstone Medical Services that texts aren’t telephone calls for Do Not Call claims. Steidinger doesn’t bind California courts, but it’s available to argue here.
Step 3: Test consent and vendor liability
Consent. Recorded-voice and autodialed calls need prior express consent, and the FCC requires written consent for telemarketing. The Fifth Circuit disagreed with the written-consent rule in Bradford v. Sovereign Pest Control, holding that “The statute provides no basis for concluding that telemarketing calls require prior express written consent but not oral consent.” That ruling binds only the Fifth Circuit, but after the Supreme Court’s 2025 decision in McLaughlin it’s a serious argument anywhere.
Vendor calls. Many claims target a seller for calls a vendor made. The Ninth Circuit holds that “a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller,” in Gomez v. Campbell-Ewald Co.. That’s the plaintiff’s burden, and contracts matter. In Jones v. Royal Administration Services, the court held that “Any claim that AAAP had actual authority to place the calls is precluded by the express language in Royal’s contract with AAAP expressly prohibiting telemarketing methods that would violate state or federal law, including laws governing robocalls,” The court concluded in Jones that the seller “did not exercise the level of control necessary to be subject to vicarious liability.”
I think vendor-liability defenses are the most underused in TCPA practice. A seller whose contracts prohibit unlawful calling and that didn’t control the vendor’s methods often has a real answer, and it’s worth building that record before the first deposition.
Step 4: Check for an arbitration clause
If the claimant is a customer, the account terms may require individual arbitration. The Supreme Court enforced consumer arbitration agreements with class waivers in AT&T Mobility LLC v. Concepcion, holding that “Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” Whether a clause covers the calls in the claim, and whether the claimant actually agreed to it, needs a close look early, because the right to compel arbitration can be lost by litigating first.
Step 5: Assess the forum
TCPA claims can be filed in either state or federal court. The Supreme Court held in Mims v. Arrow Financial Services that “federal and state courts have concurrent jurisdiction over private suits arising under the TCPA.”
Small claims court is a real possibility in California. The court has jurisdiction “if the amount of the demand does not exceed twelve thousand five hundred dollars ($12,500)” for an individual’s claim, under Code of Civil Procedure § 116.221, and an individual can file only two claims over $2,500 per year under § 116.231. Lawyers can’t appear for the parties at the hearing, as the courts’ self-help guide explains: “You can ask a lawyer for advice before you go to court, but you can’t have one with you in court.” A company served with a small claims TCPA case should prepare its representative and its records with counsel beforehand.
Time limits apply to TCPA claims, so the dates of the calls matter to the defense as well as to the claimant.
What the company will be asked to prove, and what the plaintiff must prove
| Issue | Who carries it | Records that decide it |
|---|---|---|
| The call or text was made and reached the plaintiff | Plaintiff | Plaintiff’s phone records and the company’s logs |
| A recorded or artificial voice was used | Plaintiff | Message files, dialer settings, voicemails |
| Consent | Usually the company, as a defense | Consent forms, time stamps, lead-source records |
| Agency for vendor calls | Plaintiff | Vendor contracts and the company’s actual control |
| Reasonable Do Not Call procedures | The company, as a defense | Written policy, training logs, scrub records |
The first week after a claim arrives
- Issue a litigation hold covering dialer, texting platform, CRM, and consent-capture systems, and confirm with each vendor that their data is preserved too.
- Pull the opt-out and internal do-not-call history for the claimant’s number, with dates.
- Pull the Registry scrub records and version dates for every campaign that reached the number.
- Collect vendor and lead-source contracts, along with any arbitration terms in the claimant’s account agreement.
- Talk to a lawyer before responding to the claimant, the claimant’s lawyer, or a small claims filing.
Questions businesses ask after being sued
Should we respond to the demand letter ourselves?
I wouldn’t. Early statements about how calls were made or what consent exists tend to show up later as admissions. A short response from counsel that preserves defenses, or no response while records are pulled, is usually better than a quick explanation from the business.
Can we be liable for calls our vendor made?
Yes, if the plaintiff proves an agency relationship. The Ninth Circuit applies federal common-law agency principles, and contracts prohibiting unlawful calling, together with a lack of control over the vendor’s methods, have defeated liability. Review vendor contracts and indemnity terms immediately.
Does a small claims TCPA case matter?
It can. The exposure in one case is capped, but a judgment can encourage more filings, and the same calls may support claims by other people. Treat it as a real case, prepare a knowledgeable representative, and bring the records that answer the specific theory alleged.
Will our insurance cover a TCPA claim?
It depends on the policy. Some general liability and cyber policies exclude TCPA claims, and others cover defense costs. Notify carriers promptly, because late notice can jeopardize coverage, and have coverage counsel read the exclusions.
If your company is the one being sued
If your company has received a TCPA demand letter or complaint, the defenses covered above are where the response starts. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving recorded-voice calls and vicarious liability. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227. The California small claims statutes are Code of Civil Procedure § 116.221 and § 116.231, and the courts’ small claims self-help guide. The court decisions are Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014); Jones v. Royal Administration Services, Inc., 887 F.3d 443 (9th Cir. 2018); Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379 (5th Cir. Feb. 25, 2026); and Steidinger v. Blackstone Medical Services, No. 25-2398 (7th Cir. July 14, 2026).
This post is general information about the Telephone Consumer Protection Act and related laws as of October 10, 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.