Subpoenaing Carriers in TCPA Cases: Call Records and Number Ownership

In federal court, a TCPA defendant can usually get a phone carrier’s subscriber and account records by Rule 45 subpoena, because the Stored Communications Act lets carriers disclose non-content records to private parties. What a civil subpoena can’t get is the content of stored messages: the Act bars providers from divulging it, and its exceptions don’t include a civil subpoena. So subpoena the carrier for who held the number, and get message content from the people who sent or received it.

Why would a TCPA defendant subpoena a phone carrier at all?

Because several TCPA elements and defenses depend on facts only the carrier’s records show.

The private Do Not Call claim protects a “residential telephone subscriber,” the term used in the FCC’s rule at 47 C.F.R. § 64.1200(c). Whether the plaintiff was the subscriber, and whether the account was a business line, is account information the carrier keeps. So is the date the plaintiff got the number. A plaintiff who acquired a reassigned number after your customer gave consent presents a different case than one who held it all along, and our post on TCPA motions to dismiss covers how pleading gaps on these facts can end a case early.

Call-detail records matter too. A plaintiff who alleges dozens of calls or texts has to have received them, and the carrier’s records of inbound calls and messages to the number are the most neutral evidence of what arrived and when. In my view, a defendant that relies only on its own dialer logs is giving up the chance to test the plaintiff’s count against an independent source.

What can a carrier lawfully hand over in response to a civil subpoena?

Non-content records about the subscriber and the account, under an express exception in the Stored Communications Act.

The Act’s general rule bars a provider of electronic communication service to the public from knowingly divulging “the contents of a communication while in electronic storage by that service,” in 18 U.S.C. § 2702(a)(1). A separate paragraph, § 2702(a)(3), restricts disclosure of subscriber records, but only “to any governmental entity.”

Private parties get different treatment. Under § 2702(c), a provider “may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2)),” and one of the listed exceptions is disclosure “to any person other than a governmental entity.” That’s the opening a TCPA defendant uses. Subscriber name, account type, service dates, and records of calls and messages to and from the number are all non-content information a carrier can produce.

Note the word “may.” The statute permits disclosure. The obligation to produce comes from the subpoena and Rule 45.

Can a subpoena get the text of the messages themselves?

Not from the carrier, as the statute reads. The content exceptions in § 2702(b) cover disclosure to the addressee, disclosure under specified law-enforcement provisions, and disclosure “with the lawful consent of the originator or an addressee or intended recipient of such communication,” among others. A civil subpoena isn’t on the list.

The consent exception is the practical route, and it runs both ways. The plaintiff is the addressee of every text at issue, so a defendant can ask the plaintiff to consent to the carrier’s disclosure, or to produce the messages from the plaintiff’s own phone in ordinary discovery. If the plaintiff refuses both, that’s a discovery dispute worth taking to the court.

Your company is the originator of the texts it sent. That means your own texting platform’s records of message content are reachable with your consent. In my view they should be obtained through your contract with the platform, not by subpoena, and pulled the day a claim arrives.

What does Rule 45 require of the company issuing the subpoena?

Notice to the other parties, a reasonable scope, and care not to impose undue burden.

When a subpoena commands production of documents before trial, “a notice and a copy of the subpoena must be served on each party” before it’s served on the carrier, under Federal Rule of Civil Procedure 45(a)(4). The plaintiff will see it, and may move to quash or for a protective order.

The issuer also carries a duty under Rule 45(d)(1): “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” The court must enforce it and impose an appropriate sanction, which may include “lost earnings and reasonable attorney’s fees.” And on timely motion, a court must quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies” or “subjects a person to undue burden,” under Rule 45(d)(3)(A).

Overreach carries real risk. In Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), parties to a commercial dispute subpoenaed their opponent’s internet provider for its email. A magistrate judge quashed the subpoena as “massively overbroad” and “patently unlawful,” and the Ninth Circuit held that the people whose email was produced could pursue a Stored Communications Act claim against the litigant and the lawyer who issued it, reversing the dismissal of that claim. The court warned that “The subpoena power is a substantial delegation of authority to private parties, and those who invoke it have a grave responsibility to ensure it is not abused.”

The lesson carries over to TCPA discovery. Ask the carrier for subscriber identity, account type, service dates, and call and message logs for a defined period. Don’t ask it for message content.

Which records to seek, from whom, and how

The Stored Communications Act is the source of each limit in the right-hand column.

What to do first when a TCPA claim lands

Records disappear on their own schedules. Carriers and platforms don’t keep data forever, so early action matters. The firm’s defending TCPA class actions in California page covers how TCPA claims move from demand letter to lawsuit to class action, in state and federal court. Start here:

1. Put a litigation hold on your own call and text logs, platform data, and consent records for the number, and ask your dialer and texting vendors in writing to preserve theirs.
2. Export your opt-out and internal do-not-call records for the number, with dates.
3. Pull your National Do Not Call Registry scrub records and the Registry versions used.
4. Collect vendor contracts, lead-source agreements, message templates, and any recorded or AI-voice messages, and note each vendor’s retention period.
5. Talk to a lawyer before responding to the demand letter, contacting the claimant, or offering anything to settle, and before any third-party subpoena goes out.

Questions about carrier records in TCPA cases

Will a carrier tell us who owned a phone number before the plaintiff?

It may have the records, and § 2702(c) allows disclosure of non-content subscriber information to private parties. Whether a court lets you reach a prior subscriber’s identity depends on relevance and burden under Rule 45. Tie the request to a specific defense, such as consent given by your customer before the number was reassigned.

Can we subpoena the plaintiff’s carrier before we’re sued?

Generally no. A federal Rule 45 subpoena issues from the court where an action is pending, and state courts have their own subpoena rules. Before suit, the practical step is preservation: keep your own records and ask your vendors to keep theirs. Once a case is filed, move promptly, because a carrier’s retention period keeps running whether or not anyone has asked.

Does the plaintiff get to see our subpoena?

Yes. Rule 45(a)(4) requires notice and a copy to every party before a document subpoena is served on the carrier. Expect the plaintiff to object to anything that reaches beyond the number, the period, and the records tied to your defenses.

Is our texting platform a carrier for these purposes?

It depends on the service, and it rarely matters for your own messages. Your platform holds records of texts your company sent. As the originator, your company can consent to their disclosure, and your contract should already require the platform to provide them on request.

Defending a claim that depends on phone records

If your company is defending a TCPA claim where the plaintiff’s account, number history, or message count is in question, third-party carrier records often decide those facts. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving disputed call and text records. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The Stored Communications Act provision is 18 U.S.C. § 2702. The subpoena rule is Federal Rule of Civil Procedure 45. The FCC’s TCPA rules are at 47 C.F.R. § 64.1200, in the eCFR version as of April 28, 2025.

The court decision is Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).

This post is general information about the Telephone Consumer Protection Act and related laws as of April 28, 2025. 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.