TCPA Demand Letter — What Agents Should Do First

A letter arrives. It names a date and time, a phone number, and a statute. It asserts a violation and proposes a settlement figure — often four or low five figures — to resolve the matter before litigation.

What you do in the next three days affects the outcome more than anything you do afterwards, because the two most damaging mistakes are both available immediately and both feel like reasonable responses.

Nothing on this page is legal advice, and we are not a law firm. This is the operational sequence; the legal decisions belong to counsel.

Do not do these two things

1. Do not respond directly. Not to explain, not to deny, not to say “I think there’s been a mistake.” Anything you write is evidence, written by a non-lawyer, in a matter you do not yet understand. A friendly email confirming that you did call the number on that date has just supplied an element of the claim.

2. Do not touch your data. Not to “clean up,” not to delete the record, not to remove the number from your list in a way that overwrites history. Deleting or altering potentially relevant records after receiving a demand is spoliation, and courts sanction it severely. A defensible case becomes an indefensible one, and the sanction can exceed the underlying claim.

The instinct to fix the problem is the problem. Preserve first, understand second, respond third — and through counsel.

Hour 0–24: preserve

Issue a written litigation hold, to yourself and to anyone with access to relevant systems. It is an internal memo, and its function is to establish that you took preservation seriously from the moment you were on notice.

Preserve, and suspend any automatic deletion affecting:

• Call logs — every call to the number in question, and to any number associated with the claimant
• Call recordings for those calls
• The lead record, including source, acquisition date and cost
• The consent record — language shown, source URL, timestamp, IP address, form or recording
• DNC scrub records and their dates
• Reassigned Numbers Database query logs, if you query
• SMS logs if any texts were sent
• Your dialer configuration as it stood on the date of the calls
• The scripts in use on that date

Note the last two. Configuration and scripts change, and the version that matters is the one that was live on the call date. If your systems overwrite these without history, capture them now — a screenshot with a date is better than nothing.

Also preserve your retention policy itself, because a routine deletion that happened before the letter arrived is defensible, and the way you demonstrate it was routine is by producing the policy.

Hour 24–48: notify

Your E&O carrier. Most policies require prompt notice of a claim or circumstance that could give rise to one, and late notice is a recognised basis for denying coverage. Notify even if you believe the claim is meritless, and even if you intend to resolve it quickly. This call is not optional and it is not an admission.

Whether TCPA claims are covered varies enormously by policy — many exclude them explicitly. Find out now rather than after you have incurred defence costs.

Counsel with actual TCPA experience. Not your general business lawyer, not your agency’s contract attorney. TCPA defence is a specialist area with an established plaintiff’s bar on the other side, and the difference between a specialist and a generalist here is measured in the settlement figure.

Your upline or agency, if the calls were made under their brand, their leads, or their dialer. They may have their own obligations and their own coverage.

Hour 48–72: assemble the file

Counsel will ask for these. Having them ready shortens the engagement and lowers the cost.

1. The complete call history for the number — every attempt, with timestamps in UTC and the determined local time
2. Recordings of every connected call
3. The full consent record, all six components: language shown verbatim, source URL, timestamp, IP address, the sellers named, and the form record itself
4. The lead purchase contract, including the indemnity clause and the vendor’s compliance representations
5. Vendor correspondence about consent for this lead
6. DNC scrub evidence with dates
7. Your written compliance procedures as they existed on the call date
8. Dialer configuration on the call date
9. Scripts in use on the call date

The gap in that list, when there is one, is almost always item 3. Agents hold a lead record with a name and a number and assume the consent lives at the vendor. What the vendor holds is not your evidence — it is a document you have to obtain, from a company whose interests are no longer aligned with yours. That is the argument for holding the record yourself from day one, made in full in do bought leads count as TCPA consent.

The vendor indemnity, realistically

Your lead contract almost certainly says the vendor will defend and indemnify you. Tender the claim to them promptly and in writing — that is what the clause is for, and failing to tender can waive it.

Then set your expectations honestly. Indemnity gives you a contractual claim against the vendor. It does not stop you being the named defendant, does not stop the litigation consuming your attention, and produces no money if the vendor is thinly capitalised or dissolves. Treat it as a possible financial backstop, not as a resolution.

State cure periods

Some state statutes provide a pre-suit notice-and-cure window. Florida’s 2023 FTSA amendment, for instance, added a 15-day cure period before a private action can be brought.

These windows are short and they are the most favourable moment in the entire process. Missing one because the letter sat unopened for a week is a genuinely avoidable loss. If you are writing in a state with a cure provision, the timeline in that letter matters more than its contents — get it to counsel the day it arrives. State-by-state context in state mini-TCPA laws.

Whether it is a serial plaintiff

A meaningful share of TCPA demands come from repeat filers, and this is relevant to strategy — not because it makes the claim invalid, but because it changes what a reasonable resolution looks like.

Counsel can check public dockets for the claimant’s name and phone number. Some numbers appear in dozens of filings. Some claimants maintain multiple lines specifically to generate claims. That history is a legitimate defence consideration and it is not something you should be researching yourself while unrepresented.

After it resolves

Whatever the outcome, run the post-mortem, because the same gap will produce the same letter again.

1. Which lead source? If that vendor cannot produce complete consent records for ten leads you name, stop buying from them. The test is in the 90-day vendor audit.
2. Was the call inside the window? Check against calling hours by state, using the recipient’s actual local time rather than the area code.
3. Did you have the consent record before the letter, or did you have to go get it? If the latter, fix the intake so the six components are captured at acquisition.
4. Are you retaining four years? Recordings and form records, not just contact rows.
5. Does your script identify you in the first ten seconds? Several states require it, and it is provable from your own recording either way.

One claim is an incident. Two from the same lead source is a pattern you chose not to fix, and it reads that way to a court.

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