TCPA Jury Trials: What Juries and Judges Decide

Few TCPA cases reach a jury, but those that do show where the money gets decided. The jury usually decides whether the calls were made and whether a vendor was acting as the company’s agent. The judge decides whether a violation was willful or knowing and whether to raise the award, and some courts will cut an aggregate award that’s grossly out of proportion to the harm. Each of those decisions is a chance for the defense, but only if the company preserved its defenses long before trial.

Who decides what in a TCPA jury trial?

The jury finds the facts, and the judge controls the damages multiplier. The federal statute assigns the second job directly. Under 47 U.S.C. § 227(b)(3), “If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” The Do Not Call provision in § 227(c)(5) uses the same structure.

The base amount differs by claim, and that matters at trial. For robocall and prerecorded-voice claims, § 227(b)(3) lets a plaintiff “receive $500 in damages for each such violation, whichever is greater,” comparing $500 with actual loss. For Do Not Call claims, § 227(c)(5) lets a plaintiff “receive up to $500 in damages for each such violation.” A Do Not Call jury can award less than $500 per call. A robocall jury can’t.

Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019), shows the split in practice. According to the Fourth Circuit, the jury decided whether the telemarketer was the company’s agent, whether the calls were made, and the damages for each call. “After finding that the telemarketing practices violated the TCPA and that Dish was liable for the calls placed by SSN, the jury awarded damages of $400 per call.” The district court then found the violations willful and knowing and trebled the award. The final judgment for 18,066 class members came to $61,243,800, and the Fourth Circuit affirmed.

Can a company lose a defense by not raising it before trial?

Yes, and it’s one of the most expensive mistakes in TCPA litigation. In Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022), the jury found that the company sent 1,850,440 prerecorded calls in violation of the TCPA, which produced an aggregate award of $925,220,000. The Ninth Circuit’s opinion states that “ViSalus did not raise consent as a defense in its answer,” and the district court had told the company to move to amend if it wanted to raise consent at trial.

The company instead tried to offer consent evidence only to argue against trebling. According to the Ninth Circuit, the district court barred that evidence, “holding that whether damages should be trebled was an issue reserved for the court, not the jury.” After the verdict, the FCC granted the company a retroactive waiver of the written-consent rule for the calls in the case. The Ninth Circuit held that the waiver didn’t revive a defense the company had already given up.

The lesson for any defendant is to plead every defense that might matter: consent, an existing business relationship, the Do Not Call safe harbor, and the absence of an agency relationship with the caller. The safe harbor is written as an affirmative defense. Under § 227(c)(5), “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.” A defense that isn’t in the answer may not be available when it counts.

The right to a jury can be lost the same way. Under Federal Rule of Civil Procedure 38(d), “A party waives a jury trial unless its demand is properly served and filed.” Whether a company wants a jury is a strategic call, but it should be a decision, not an oversight.

Can a jury hold a company liable for a vendor’s calls?

Yes, if the vendor was acting as the company’s agent, and that’s usually a fact question for the jury. In Krakauer, the Fourth Circuit noted that “the existence and scope of agency relationships are factual matters,” and it upheld the jury’s finding that the telemarketer was the company’s agent. The court pointed to evidence that the company knew of the vendor’s violations. “Dish had its chance to persuade the jury, and it lost.”

Agency cuts both ways. In Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019), the plaintiffs tried an agency theory against an investor in a film and others involved in a marketing campaign. The Eighth Circuit’s opinion states that “The jury returned a verdict in favor of Dr. Leininger and the other defendants.” Liability fell only on the company that placed the calls, based on a ruling the court had made before trial.

Agency also takes real proof. In Hossfeld v. Allstate Insurance Co., Nos. 25-1518 and 25-1672 (7th Cir. June 24, 2026), a subcontracted telemarketer placed the calls. The Seventh Circuit reversed a summary judgment for the plaintiff “because Hossfeld failed to show Allstate is liable for Atlantic’s calls under any theory of agency law.” The same evidence that defeats agency on a motion is the evidence a company puts in front of a jury, and the post on personal TCPA liability for owners and officers covers the related question of who else can be named.

What does “willful or knowing” mean in a TCPA case?

More than making the call on purpose. The Fourth Circuit in Krakauer explained that the company “would only be liable if its actions demonstrated indifference to ongoing violations and a conscious disregard for compliance with the law.” The Seventh Circuit in Hossfeld adopted the knowing-or-reckless standard used for other consumer statutes: “Volitional action is thus insufficient to trigger treble damages under the TCPA; we require reckless or knowing behavior.”

That standard rewards companies that respond to warning signs. A company that investigates complaints about a vendor and then cuts the vendor off has a record that argues against recklessness. A company that kept accepting transfers after a state settlement or a stack of demand letters has the opposite record. Trebling is discretionary, and the judge deciding it will read the compliance file closely. That file is the core of any TCPA trial defense on willfulness.

Can a court reduce a huge TCPA verdict?

Sometimes, on due process grounds, but only in extreme cases. In Golan, statutory damages of $500 per call for 3,242,493 calls would have totaled $1,621,246,500. According to the Eighth Circuit’s opinion, the district court found the $1.6 billion award “obviously unreasonable and wholly disproportionate to the offense” and reduced the damages to $10 per call, for a total of $32,424,930. The Eighth Circuit affirmed, noting that the caller had prior consent to call about religious liberty and that the campaign lasted about a week.

In Wakefield, the Ninth Circuit vacated the denial of the company’s due process challenge and sent the $925 million award back for a fresh look. The court held that “aggregated statutory damages awards are, in certain extreme circumstances, subject to constitutional due process limitations.” The per-call amount stays constitutional on its own, so this argument doesn’t help a defendant with a few hundred calls. It matters in class cases where the call count turns $500 into a number no business could pay.

Getting a TCPA case ready for trial

1. Keep the litigation hold in place through trial, covering call and text logs, dialer and platform data, and the consent records for every number in the case.
2. Pull the internal do-not-call list and the opt-out history, with dates, for each number at issue.
3. Collect the National Do Not Call Registry scrub records and the version dates the campaign used.
4. Gather the vendor and lead-source contracts, the scripts, and any recorded or AI-voice messages, along with the company’s responses to complaints about each vendor.
5. Have a lawyer confirm that every defense is pleaded and the jury decision is made before anyone responds to a settlement demand or contacts the plaintiff.

Questions about TCPA trials

Does a business have the right to a jury in a TCPA case?

Either side can demand one. Rule 38 lets a party demand a jury on any issue triable of right by a jury, and TCPA damages claims have gone to juries in cases like Krakauer and Wakefield. The demand has to be served and filed on time, or the right is waived. An arbitration agreement with the customer may move the case out of court, which is a separate question worth checking early.

Should a company want a jury in a TCPA case?

It depends on the facts and the venue. A jury can be skeptical of a plaintiff who has filed many TCPA suits or who invited the calls, and a jury rejected the agency theory in Golan. But juries also hear the call counts, and Krakauer shows a jury willing to hold a company responsible for a vendor. The decision should follow an honest look at the consent and agency evidence, which the post on consent evidence at summary judgment covers.

Does a jury verdict end a TCPA class action?

Not always. In Krakauer, the final judgment came more than a year after the jury trial, after a claims process to match class members to the numbers called. In Wakefield, post-trial motions and the due process challenge kept the case going for years. Post-trial work can change the final number a great deal, so the trial strategy should account for it from the start.

If your company is headed to a TCPA trial

If your company is facing trial on calls placed by a vendor, the agency evidence and the defenses pleaded in the answer usually decide how much is at stake. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls made by third-party telemarketers. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The federal statute is 47 U.S.C. § 227, and the jury demand rule is Federal Rule of Civil Procedure 38. The appellate decisions are Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019); Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019); Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022); and Hossfeld v. Allstate Insurance Co., Nos. 25-1518 and 25-1672 (7th Cir. June 24, 2026).

This post is general information about the Telephone Consumer Protection Act and related laws as of June 27, 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.