Consent is the defense most businesses expect to win a TCPA case with, and it’s also the one the business has to prove. Courts treat prior express consent as an affirmative defense, so the answer is where the company first commits to it, along with the Do Not Call compliance defense and the jurisdictional points that can be lost by leaving them out. A careful answer doesn’t win the case, but a careless one can give away defenses the company would have won on.
What makes a TCPA defense “affirmative”?
It’s a defense the business carries, not an element the plaintiff has to prove. Federal Rule of Civil Procedure 8(c)(1) says “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense,” and the rule’s list includes “release,” “res judicata,” “statute of limitations,” and “waiver.”
The TCPA adds defenses of its own. Two matter most. The first is consent, which the statute writes into the autodialer and prerecorded-voice provision itself. The second is the good-faith compliance defense Congress built into the Do Not Call private right of action. Both put the burden on the company, and both depend on records the company has to produce.
A defense that isn’t pleaded can still come in later by amendment in many cases, but that depends on the court’s leave and on whether the delay prejudiced the plaintiff. The safer course is to plead every defense the facts support at the start and drop the weak ones after discovery.
Who has to prove consent?
The business does. The Ninth Circuit put it directly in Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037: “Express consent is not an element of a plaintiff’s prima facie case but is an affirmative defense for which the defendant bears the burden of proof.”
The defense won the case there. The court affirmed “summary judgment for Defendants on their affirmative defense” that the plaintiff “consented to receive the text messages at issue here.” According to the opinion, the plaintiff gave his cell number while signing up for a gym membership, and he “did not expressly revoke his consent.”
The statute’s text is the source of the defense. 47 U.S.C. § 227(b)(1)(A) bars calls using an autodialer or “an artificial or prerecorded voice” to a cell phone, other than a call “made with the prior express consent of the called party.” For telemarketing messages, the FCC’s rule requires more: “prior express written consent,” which 47 C.F.R. § 64.1200(f)(9) defines as “an agreement, in writing, bearing the signature of the person called.” The answer should plead consent in a way that covers both levels, since the plaintiff will argue that whatever consent exists is the wrong kind.
Revocation is the plaintiff’s answer to consent, and the company should be ready for it. The FCC’s rule now says a called party may revoke consent “by using any reasonable method to clearly express a desire not to receive further calls or text messages,” under section 64.1200(a)(10). Pleading consent without first checking the opt-out logs invites an embarrassing deposition.
Is there a defense for Do Not Call claims?
Yes, and it’s written into the statute. The private right of action at 47 U.S.C. § 227(c)(5) provides: “It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.”
The FCC’s rule adds a related safe harbor for calls to numbers on the national Registry. Under section 64.1200(c)(2)(i), a seller isn’t liable if it “can demonstrate that the violation is the result of error” and, as part of its routine business practice, it meets the listed standards. Among them, the seller must use a version of the Registry “obtained from the administrator of the registry no more than 31 days prior to the date any call is made,” according to the same paragraph, and it must keep written procedures and train its staff.
These defenses are only as good as the paperwork. A company that scrubbed its lists but can’t show which Registry version it used on which date will struggle to prove the safe harbor. The earlier post on the 31-day scrub rule covers what records to keep.
Which defenses can a business lose by leaving them out?
Personal jurisdiction is the one that disappears fastest. Rule 12(h)(1) says a party waives a defense listed in Rule 12(b)(2) through (5) by “omitting it from a motion in the circumstances described in Rule 12(g)(2)” or by failing to raise it by motion or “include it in a responsive pleading.” For an out-of-state company sued where it doesn’t operate, that defense has to be in the first filing.
Other defenses survive longer. Rule 12(h)(2) lets a party raise failure to state a claim in a pleading, “by a motion under Rule 12(c),” or “at trial.” Rule 12(h)(3) says that if the court “determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action,” which keeps Article III standing arguments alive throughout the case.
Arbitration deserves its own warning. An arbitration agreement isn’t on the Rule 8(c) list, but a company that answers on the merits, serves discovery, and waits months to move to compel gives the plaintiff an argument that it gave up the right. If the company has an arbitration clause, the answer should say so, and the motion to compel should come early.
| Defense | Source | What the business must show | When it’s usually decided |
|---|---|---|---|
| Prior express consent | 47 U.S.C. § 227(b)(1)(A); Van Patten | The called party gave the number and consent covered the call, with no revocation | Summary judgment or class certification |
| Prior express written consent (telemarketing) | 47 C.F.R. § 64.1200(f)(9) | A signed written agreement with the required disclosures | Summary judgment |
| Do Not Call good-faith practices | 47 U.S.C. § 227(c)(5) | Reasonable procedures, established and implemented with due care | Summary judgment or trial |
| Registry safe harbor | 47 C.F.R. § 64.1200(c)(2)(i) | Error, plus written procedures, staff training, a recorded do-not-call list, and a current scrub | Summary judgment |
| Release or res judicata | Fed. R. Civ. P. 8(c)(1) | A prior settlement or judgment covering the claim | Motion for judgment on the pleadings or summary judgment |
| Lack of personal jurisdiction | Fed. R. Civ. P. 12(b)(2), 12(h)(1) | Insufficient contacts with the forum | First motion or the answer, or it’s waived |
What else commonly appears in a TCPA answer?
Several defenses aren’t affirmative in the technical sense but are worth stating so the plaintiff can’t claim surprise. The most useful ones deny elements: that the company “made” or “initiated” the call, that the equipment was an autodialer under Facebook v. Duguid, that the number was residential, or that the message was telemarketing at all. The earlier post on the autodialer defense after Duguid explains why most marketing texts fall outside the autodialer definition.
Vicarious liability is the other big one for companies that use vendors. If a lead generator or call center made the calls, the answer should deny that the vendor acted as the company’s agent, and the company should look at its contracts for indemnity rights before it files.
Boilerplate lists of twenty-five defenses aren’t the goal. Judges notice when an answer copies tort defenses such as assumption of risk into a text-message case, and Rule 12(f) lets a court “strike from a pleading an insufficient defense.” A shorter list tied to the facts reads better and holds up better.
What should a business do before filing its answer?
- Put a litigation hold on the call and text logs, platform and dialer data, and every consent record for the plaintiff’s number.
- Pull the opt-out and internal do-not-call entries for the number, with dates, to test any revocation story before pleading consent.
- Retrieve the Registry scrub files and the version dates used for the campaign, since the good-faith defense and the safe harbor turn on them.
- Gather the vendor and lead-source agreements, call scripts, and any prerecorded or AI-voice files tied to the calls.
- Have a lawyer review the complaint before the company answers, talks to the plaintiff, or offers anything, because the answer fixes which defenses are in the case.
For a broader look at early motions that can end a case before an answer is due, see the post on TCPA motions to dismiss. After the pleadings close, the case moves to discovery and class certification, which the firm’s page for California TCPA defense lawyers describes.
TCPA answer questions from businesses
Do we have to plead consent if we’re also denying the calls were autodialed?
Yes. The two defenses don’t conflict. Denying that the equipment was an autodialer attacks an element of the plaintiff’s claim, while consent is a separate defense the company has to raise and prove. Pleading both keeps every route to summary judgment open, and dropping one later is much easier than adding it after the deadline to amend has passed.
Can we add an affirmative defense after discovery?
Often, but not as a matter of right. Once the time to amend as a matter of course has passed, the company needs the plaintiff’s agreement or the court’s leave. Courts weigh delay and prejudice to the plaintiff. A defense the company knew about at the start, such as a release in an earlier settlement, is the hardest to add late, so it belongs in the original answer.
Does pleading the Do Not Call good-faith defense waive privilege?
It can put compliance practices at issue, which leads to discovery about how the company trains staff and scrubs its lists. That’s usually unavoidable if the company wants the defense. Communications with counsel about those practices are a separate question, and the company should decide early which documents it will rely on so privileged legal advice isn’t swept in.
Is failure to mitigate a defense to a TCPA claim?
It’s a weak one. The statute awards a set amount per violation and doesn’t mention mitigation, so an argument that the plaintiff should have blocked the number has little to attach to. Facts suggesting the plaintiff invited the calls are better framed as consent or as part of a standing challenge.
Answering a TCPA complaint
If your company has been served with a TCPA complaint, the answer is the first place it commits to its consent and Do Not Call defenses, and what’s left out can be hard to add back. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving consent disputes and Do Not Call compliance. Contact Rosenberger + Kawabata online for a 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. The procedural rules are Federal Rule of Civil Procedure 8 and Rule 12.
The court decision is Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037.
This post is general information about the Telephone Consumer Protection Act and related laws as of April 2, 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.