Telephone Consumer Protection Act Defense

TCPA Defense Lawyers for Florida Businesses

A single marketing campaign can turn into a lawsuit worth more than the business that sent it. The Telephone Consumer Protection Act (TCPA) allows anyone who receives an unlawful call, text message or fax to sue for $500 per violation, and a court can raise that to as much as $1,500 per violation if it finds the violation was willful or knowing. There is no cap. Two thousand text messages at $500 each is $1 million before any increase.

Jimerson Birr’s TCPA defense lawyers represent businesses that have received a demand letter, been sued by an individual, or been named in a TCPA class action. We also defend claims under Florida’s own telemarketing statute, the Florida Telephone Solicitation Act (FTSA). If your business has been served or threatened, talk with our Florida TCPA defense attorneys before you respond.

What the Telephone Consumer Protection Act Covers

The TCPA reaches far more businesses than most owners expect. It is not limited to call centers. Claims commonly arise from:

• Calls or text messages to cell phones made with an autodialer or an artificial or prerecorded voice without the required consent.
• Prerecorded telemarketing calls to residential lines.
• Telemarketing calls to numbers on the National Do Not Call Registry.
• Telemarketing calls before 8 a.m. or after 9 p.m. in the recipient’s time zone.
• Unsolicited fax advertisements.
• Calls or texts that continue after the recipient has asked them to stop.

Courts treat text messages as calls for most TCPA purposes, which is why mass text campaigns now drive so much of the litigation. Liability can also reach the business whose products are being promoted, not only the vendor or lead generator that placed the calls.

Received a TCPA Demand Letter or Lawsuit? What to Do First

The first few weeks often shape the whole case. If your business has received a TCPA demand letter or complaint:

1. Preserve your records. Keep consent records, opt-out logs, call and text logs, dialing platform data and vendor contracts. Pause any routine deletion.
2. Stop contacting the claimant. Federal rules now require businesses to honor an opt-out made by any reasonable method within 10 business days.
3. Identify everyone involved. List the vendors, platforms and lead sources behind the campaign. Your contracts may give you indemnity rights.
4. Check your insurance. Some policies exclude TCPA claims and others may provide a defense. Most require prompt notice.
5. Watch the deadline. A defendant generally has 21 days after service to respond in federal court and 20 days in Florida state court.
6. Talk to counsel before you reply. What you say to a claimant’s lawyer can be used later, including in a class action.

How We Defend TCPA and FTSA Claims

TCPA cases are won and lost on details: who consented, how, to what, and on what equipment. Our defense work focuses on the issues that most often decide these cases.

Consent

Prior express consent is a complete defense to many TCPA claims, and written consent is required for most autodialed or prerecorded marketing. We trace the consent behind each number, including web forms, checkboxes and lead-vendor records. Under the FTSA, checking a box or replying affirmatively to a text can count as a signature.

Autodialer Arguments

In Facebook, Inc. v. Duguid (2021), the U.S. Supreme Court held that equipment is an autodialer under the TCPA only if it uses a random or sequential number generator to store or produce the numbers called. Many modern texting and dialing platforms do not. Florida narrowed the FTSA in 2023 to cover an automated system for the selection and dialing of telephone numbers.

Exemptions and Statutory Limits

Not every call is covered. The FTSA applies to sales calls for consumer goods and services and excludes calls to people with a prior or existing business relationship. Do Not Call claims require more than one call in a 12-month period. TCPA claims are generally subject to a four-year statute of limitations, which can cut off part or all of a class period.

Standing and Class Certification

A class action can only proceed if the court certifies a class. When consent was gathered in different ways from different people, individual questions can defeat certification. We also test whether each named plaintiff has standing to sue at all.

Early Resolution

Some cases are best resolved early. When the numbers favor settlement, we negotiate terms designed to close the matter without making your business a target for the next claim.

If your business has received a TCPA demand letter or a class action complaint, contact our Florida TCPA defense attorneys to discuss your exposure and your options. Call (904) 389-0050.

Our TCPA Defense Services

• Providing defense counsel for clients facing class action litigation arising from alleged TCPA violations
• Helping our clients understand the elements of a TCPA violation and offering advice on improvements which could prevent future litigation
• Developing a defense strategy that highlights procedural mechanisms employed to ensure TCPA compliance
• Utilizing class action litigation strategies to challenge class certification and standing
• Negotiating and facilitating cost-effective resolutions when appropriate
• Trial counsel that challenges the allegations and limits exposure for damages

The Florida Telephone Solicitation Act (FTSA)

Florida’s mini-TCPA, section 501.059 of the Florida Statutes, creates a separate claim for unsolicited sales calls and texts to Florida consumers. Key points for businesses:

• Damages: $500 or actual damages, whichever is greater, and up to three times that amount for a willful or knowing violation.
• Attorney’s fees run both ways: the prevailing party recovers reasonable fees and costs. A business that defeats an FTSA claim can recover its fees.
• Text message notice: before suing over texts, the recipient must reply “STOP,” and can sue only if the texts continue more than 15 days later.
• Florida area codes: a call to a Florida area code is presumed to reach a Florida resident, so out-of-state businesses are not automatically outside the statute.

Many complaints plead the TCPA and the FTSA together. We defend both.

Recent Changes in TCPA Law

• One-to-one consent rule vacated (January 2025). The U.S. Court of Appeals for the Eleventh Circuit, which covers Florida, struck down the FCC’s rule that would have required consent to be given to one seller at a time.
• Opt-out rules (2025). Consumers may revoke consent by any reasonable method, including replying “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel” or “unsubscribe,” and businesses must honor the request within 10 business days.
• Courts are no longer bound by FCC readings (June 2025). In McLaughlin Chiropractic Associates v. McKesson Corp., the U.S. Supreme Court held that district courts must interpret the TCPA for themselves rather than defer to the FCC. That opens defenses that FCC orders once foreclosed.

TCPA Defense FAQs

How much can a TCPA violation cost a business?

$500 per call or text, and up to $1,500 per call or text if the court finds the violation willful or knowing. In a class action, those amounts are multiplied across every class member and every message.

What is the statute of limitations for a TCPA claim?

Courts generally apply the four-year federal limitations period, measured from each call or text.

Does the TCPA apply to text messages?

Yes. Courts treat text messages as calls for most TCPA purposes, and the FTSA expressly covers text messages.

Does the TCPA apply to business-to-business calls?

Partly. The autodialer and prerecorded-voice rules for cell phones apply no matter who owns the phone. Do Not Call protections focus on residential subscribers, and the FTSA covers sales of consumer goods and services.

Can a business recover its attorney’s fees in a TCPA case?

The federal TCPA does not provide for fee shifting. The FTSA does: the prevailing party, including a defendant, recovers reasonable fees and costs.

Talk to a TCPA Defense Lawyer

TCPA exposure grows with every message, and the early decisions matter. If your business has received a TCPA or FTSA demand letter, lawsuit or class action complaint, contact Jimerson Birr or call (904) 389-0050 to speak with our TCPA defense team.