TCPA Demand Letter - Hawaii

HAWAII TCPA DEMAND LETTER

(Pre-Suit Demand for Illegal Calls, Texts, and Faxes under the federal TCPA, 47 U.S.C. § 227, and HRS Chapter 481P / § 480-2)

Quick-Reference Summary

Sender Letterhead

[ATTORNEY OR FIRM NAME]
[STREET ADDRESS]
[CITY], HI [ZIP]
Phone: [____________]
Email: [____________]
Hawaii Bar No.: [____________]

Date and Recipient

Date: [__/__/____]

Sent Via:
☐ U.S. Certified Mail, Return Receipt Requested (Tracking No. [____________])
☐ Overnight Delivery (FedEx/UPS) (Tracking No. [____________])
☐ Hand Delivery by Process Server
☐ Email (where authorized) to [____________]

To:
[RECIPIENT LEGAL NAME], a [corporation / LLC / sole proprietor]
Attn: [Registered Agent / Compliance Officer]
[STREET ADDRESS]
[CITY], [STATE] [ZIP]

Subject Line / Re: Block

RE: DEMAND TO CEASE UNLAWFUL CALLS/TEXTS/FAXES AND SETTLEMENT DEMAND — Telephone Consumer Protection Act, 47 U.S.C. § 227, and HRS Chapter 481P / § 480-2

Claimant: [____________]
Claimant's Telephone Number(s) Called: [____________]
Number of Documented Violations: [____]
Approximate Settlement Demand: $[____________]

THIS LETTER DEMANDS THAT YOU IMMEDIATELY CEASE ALL TELEPHONE CALLS, TEXT MESSAGES, AND FACSIMILE TRANSMISSIONS TO THE CLAIMANT AND PRESERVE ALL RELEVANT RECORDS. IT ALSO CONSTITUTES A PRE-SUIT SETTLEMENT DEMAND.

I. Parties

A. Claimant

[CLAIMANT NAME] ("Claimant") is a natural person residing at [ADDRESS], [City], Hawaii [ZIP]. Claimant is the subscriber and/or customary user of the telephone number(s) identified above, is a "called party" within the meaning of the TCPA, and is a "consumer" within the meaning of HRS Chapter 480.

☐ Claimant's number is registered on the National Do Not Call Registry (registered on [__/__/____]).
☐ Claimant's number is a cellular/wireless number.
☐ Claimant's number is a residential line.
☐ Claimant never gave prior express consent (or prior express written consent) to be contacted.
☐ Claimant revoked any prior consent on [__/__/____] by [____________].

B. Recipient

[RECIPIENT LEGAL NAME] ("Recipient") is a [corporation / LLC / partnership / sole proprietor] organized under the laws of [STATE], with a principal place of business at [ADDRESS]. Recipient placed, or caused to be placed on its behalf, the calls/texts/faxes described below.

☐ Recipient placed the communications directly.
☐ Recipient is vicariously liable for communications placed by [vendor/telemarketer name] on Recipient's behalf.

II. Factual Background — The Unlawful Communications

A. Nature of the Communications

The communications at issue were:

☐ Calls using an automatic telephone dialing system (ATDS / autodialer) — 47 U.S.C. § 227(b)(1)(A)
☐ Calls/messages using an artificial or prerecorded voice ("robocalls") — 47 U.S.C. § 227(b)(1)(A)–(B)
☐ Text messages (SMS/MMS), which courts treat as "calls" under the TCPA
☐ Calls to a number on the National Do Not Call Registry — 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)
☐ Calls/texts after a do-not-call or "STOP" request (no internal DNC procedures) — 47 C.F.R. § 64.1200(d)
☐ Unsolicited fax advertisements ("junk faxes") — 47 U.S.C. § 227(b)(1)(C)
☐ Abusive telemarketing acts under HRS § 481P-3 (threats/profanity; ringing more than ten times; repeated annoying/abusive/harassing contact; advance-fee or credit-repair schemes)

B. Itemized Log of Offending Calls/Texts/Faxes

Total documented violations: [____]

C. Absence of Consent

Claimant did not provide prior express consent — and, for marketing robocalls/robotexts, did not provide the "prior express written consent" required by 47 C.F.R. § 64.1200(a)(2). To the extent any consent ever existed, Claimant revoked it on [__/__/____], and Recipient continued to contact Claimant thereafter.

III. Legal Basis

A. Federal TCPA — 47 U.S.C. § 227

1. Autodialed/prerecorded calls and texts to cell phones are prohibited absent prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii).
2. Prerecorded telemarketing calls to residential lines are prohibited absent prior express written consent. 47 U.S.C. § 227(b)(1)(B).
3. Unsolicited fax advertisements are prohibited. 47 U.S.C. § 227(b)(1)(C).
4. Do-Not-Call violations — more than one call within 12 months by or on behalf of the same entity to a number on the National DNC Registry, or failure to honor a company-specific request within ten business days. 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c), (d)(3).
5. Statutory damages: Section 227(b)(3) permits actual loss or $500 per violation and discretionary trebling. Section 227(c)(5) separately permits actual loss or up to $500 per qualifying violation only after its repeat-call threshold is met, with a discretionary increase to no more than three times that amount.
6. Limitations: A private TCPA action must be brought within four (4) years. 28 U.S.C. § 1658(a).

B. Hawaii Telemarketing Statute — HRS § 481P-3 and § 481P-5

Under HRS § 481P-3, it is an abusive telemarketing act or practice for any seller or telephone solicitor to, among other things: threaten, intimidate, or use profane or obscene language; charge advance fees for credit-repair or loan services; cause the telephone to ring more than ten times in an outbound call; or engage a consumer repeatedly or continuously with behavior a reasonable person would deem annoying, abusive, or harassing. A violation of Chapter 481P is a violation of HRS § 480-2.

C. Hawaii UDAP — HRS § 480-2 and § 480-13

HRS § 480-2(a) declares that unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. Under HRS § 480-13, any consumer who is injured by an unfair or deceptive act or practice forbidden by § 480-2 may sue and recover treble damages (for a natural person, the greater of $1,000 or three times the actual damages sustained), together with reasonable attorney's fees and the costs of suit. Recipient's unlawful telemarketing conduct constitutes such an unfair or deceptive practice.

IV. Demand

Within [____] days (recommended: 21–30 days) of the date of this letter, Recipient must:

1. ☐ Immediately cease and desist all telephone calls, text messages, and fax transmissions to Claimant and to any other number associated with Claimant;
2. ☐ Add Claimant's number(s) to Recipient's internal do-not-call list and suppress them across all campaigns and vendors;
3. ☐ Confirm in writing the date consent (if any) was obtained, the source of Claimant's number, and the identity of any third-party telemarketer/vendor used;
4. ☐ Preserve all records identified in Section V below;
5. ☐ Pay Claimant a settlement in the amount of $[____________] in full resolution of the documented violations; and
6. ☐ Other: [____________].

Settlement Calculation

V. Litigation Hold / Evidence Preservation Notice

Recipient is on formal notice of its duty to preserve all evidence relevant to the communications described above, including without limitation:

• All call-detail records, dialer logs, campaign records, and outbound call/text/fax logs reflecting contact with Claimant's number(s);
• All records of the autodialer, predictive dialer, or platform used, and its configuration;
• All recordings, scripts, and prerecorded/artificial-voice message files;
• All records of consent (and any "prior express written consent"), opt-in capture, and the source/lead vendor for Claimant's number;
• All do-not-call requests, "STOP" texts, internal DNC lists, and DNC scrubbing records;
• All contracts and communications with any third-party telemarketer/lead generator acting on Recipient's behalf;
• All ESI in any form, including metadata, system backups, and cloud-hosted data.

Recipient must immediately suspend any document retention/destruction schedule or automated overwrite that would result in the loss of relevant evidence. Spoliation may give rise to sanctions and adverse inferences.

VI. Response Deadline and Method

Recipient's written response and settlement tender are due no later than [__/__/____].

Direct all written responses to:

[ATTORNEY NAME]
[FIRM NAME]
[ADDRESS]
Email: [____________]
Phone: [____________]

If Recipient fails to respond, continues the unlawful communications, or fails to make a reasonable tender, Claimant will commence suit in the U.S. District Court for the District of Hawaii and/or the Circuit Court of the [____________] Circuit, State of Hawaii, seeking all available statutory damages, treble damages, injunctive relief, attorney's fees, and costs. Claimant also reserves the right to file complaints with the Federal Communications Commission, the Federal Trade Commission, and the Hawaii Office of Consumer Protection.

All rights, claims, and remedies are expressly reserved. No statement in this letter waives any claim or defense.

Signature Block

Respectfully,

_______________________________
[ATTORNEY NAME]
[FIRM NAME]
[ADDRESS]
Phone: [____________]
Email: [____________]
Hawaii Bar No.: [____________]
Attorney for [CLAIMANT NAME]

Enclosures:
☐ Call/text/fax log with screenshots
☐ Carrier records or call-detail records
☐ National Do Not Call registration confirmation
☐ Copies of offending text messages or fax advertisements
☐ Documentation supporting damages calculation
☐ Other: [____________]

Pre-Send Checklist

☐ Confirmed each communication is documented (date, time, number, type, content)
☐ Confirmed absence of prior express (written) consent, or documented revocation
☐ Confirmed National DNC registration where relevant
☐ Identified any HRS § 481P-3 abusive-act violations (ten-ring rule; harassment; advance fees)
☐ Confirmed claimant qualifies as a "consumer" for the HRS § 480-2 / § 480-13 claim
☐ Verified Recipient's legal name and registered agent via Hawaii DCCA Business Registration search
☐ Verified the 4-year federal SOL (28 U.S.C. § 1658) and the 4-year HRS § 480-24 SOL have not run
☐ Calculated settlement demand (negligent vs. willful) and fee exposure
☐ Issued litigation hold to Recipient (via this letter) and to Claimant
☐ Selected delivery method that produces verifiable proof of delivery
☐ Removed all guidance comments
☐ Retained signed file copy plus delivery confirmation

Sources and References

• Telephone Consumer Protection Act, 47 U.S.C. § 227: https://www.law.cornell.edu/uscode/text/47/227
• FCC implementing rules, 47 C.F.R. § 64.1200: https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-64/subpart-L/section-64.1200
• 28 U.S.C. § 1658 (4-year statute of limitations): https://www.law.cornell.edu/uscode/text/28/1658
• HRS § 481P-3 (prohibited abusive telemarketing acts): https://codes.findlaw.com/hi/division-2-business/hi-rev-st-sect-481p-3/
• HRS § 480-2 (unfair or deceptive acts or practices declared unlawful): https://law.justia.com/codes/hawaii/title-26/chapter-480/section-480-2/
• HRS § 480-13 (private right of action; treble damages; fees and costs): https://law.justia.com/codes/hawaii/title-26/chapter-480/section-480-13/
• Hawaii Office of Consumer Protection (DCCA): https://cca.hawaii.gov/ocp/
• Hawaii DCCA Business Registration Division — entity search: https://hbe.ehawaii.gov/documents/search.html