TCPA Demand Letter - Montana

MONTANA TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City, State ZIP]
Telephone: [____________]
Email: [____________]
[MT Bar No. / File No., if applicable]

Date and Recipient

Date: [__/__/____]

Via Certified Mail, Return Receipt Requested, No. [____________]
And Via Email to: [____________]

[RECIPIENT NAME / REGISTERED AGENT]
[BUSINESS NAME]
[Street Address]
[City, State ZIP]

Subject Line / Re: Block

RE: DEMAND TO CEASE UNLAWFUL TELEPHONE COMMUNICATIONS AND TO SETTLE CLAIMS — Telephone Consumer Protection Act, 47 U.S.C. § 227; Mont. Code Ann. § 45-8-216; Montana Consumer Protection Act, Mont. Code Ann. § 30-14-101 et seq.
Claimant: [CLAIMANT FULL NAME]
Claimant Telephone Number(s) Called: [____________]
Date Range of Violations: [__/__/____] through [__/__/____]
Number of Offending Calls/Texts/Faxes: [____]

I. Parties

Claimant: [CLAIMANT FULL NAME], a Montana resident residing at [ADDRESS], County of [____________], State of Montana, who is the subscriber and/or customary user of the telephone number(s) [____________]. Claimant ☐ registered the number(s) on the National Do-Not-Call Registry on [__/__/____] / ☐ previously requested no further calls from Respondent on [__/__/____] / ☐ revoked any prior consent on [__/__/____].

Respondent: [BUSINESS NAME], a [STATE OF INCORPORATION] [entity type], whose principal place of business is at [ADDRESS] and whose registered agent is [AGENT NAME] at [AGENT ADDRESS]. Respondent ☐ placed the calls/texts directly / ☐ caused them to be placed by an agent, lead generator, or third-party dialer acting on its behalf, for which Respondent is vicariously liable.

II. The Offending Communications (Call Log)

Respondent and/or its agents placed the following calls, text messages, and/or facsimile transmissions to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call registry):

Total documented violations: [____]

III. Legal Framework — Overlapping Federal and Montana Liability

A. Federal TCPA — 47 U.S.C. § 227

The federal TCPA is the primary vehicle for individual statutory-damages claims arising from unlawful calls, texts, and faxes:

• ATDS / artificial- or prerecorded-voice calls to cell phones — § 227(b)(1)(A): subject to the statute and rule's stated exceptions, prohibits calls using an ATDS or an artificial or prerecorded voice to a cellular telephone number without prior express consent. For advertising or telemarketing calls covered by 47 C.F.R. § 64.1200(a)(2), prior express written consent generally is required, subject to the rule's stated nonprofit and health-care exceptions. Under Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), equipment is an ATDS only if it has the capacity either to store a telephone number using a random or sequential number generator or to produce a telephone number using such a generator.
• Artificial or prerecorded calls to residential lines — § 227(b)(1)(B): the statute prohibits these calls without prior express consent unless the call is for an emergency purpose, concerns specified federal debt, or falls within an FCC exemption. Current 47 C.F.R. § 64.1200(a)(3) contains consent rules, numerical limits, and opt-out conditions that must be applied to the call type.
• National Do-Not-Call Registry — § 227(c) and 47 C.F.R. § 64.1200(c): restricts telephone solicitations to numbers on the National Do-Not-Call Registry; a caller invoking the safe-harbor standards must use a Registry version obtained no more than 31 days before the call (47 C.F.R. § 64.1200(c)(2)). A consumer private action under § 227(c)(5) requires more than one call within a 12-month period by or on behalf of the same entity.
• Internal do-not-call / company-specific request — 47 C.F.R. § 64.1200(d)(3): requires the caller to record the request when made and honor it within a reasonable time not exceeding ten business days.
• Unsolicited fax advertisements — § 227(b)(1)(C): generally prohibits sending unsolicited advertisements to a telephone facsimile machine unless the statutory established-business-relationship, number-acquisition, and notice conditions are satisfied; a compliant opt-out request ends the exception.

Damages: Section 227(b)(3) permits actual loss or $500 per violation, with a discretionary increase to no more than three times that amount for a willful or knowing violation. Section 227(c)(5) separately requires more than one call within a 12-month period by or on behalf of the same entity and permits actual loss or up to $500 per qualifying violation, with the same discretionary trebling ceiling. Match each call, text, or fax to the specific claim before calculating damages.
Statute of limitations: generally 4 years after accrual — 28 U.S.C. § 1658(a).
Private right of action: expressly provided — § 227(b)(3), (c)(5).

B. Montana Automated Recorded-Message Statute — Mont. Code Ann. § 45-8-216

Montana independently prohibits automated telephone solicitation. Section 45-8-216(1) provides that "[a] person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of":

• (a) offering goods or services for sale;
• (b) conveying information on goods or services in soliciting sales or purchases;
• (c) soliciting information;
• (d) gathering data or statistics; or
• (e) promoting a political campaign or any use related to a political campaign.

Section 45-8-216(2) exempts status/inquiry-response calls and calls "when there is a preexisting business relationship," and permits an automated system "if the permission of the called party is obtained by a live operator before the recorded message is delivered." A person who violates subsection (1) "is subject to a fine of not more than $2,500" — § 45-8-216(3).

NOTE — § 45-8-216 STATES A GOVERNMENT-IMPOSED FINE: The section does not state a private civil action for damages. It may support a referral to enforcement authorities. Do not treat a violation of § 45-8-216 as automatically establishing an MCPA claim; a separate MCPA claim must satisfy §§ 30-14-103 and 30-14-133.

C. Montana Consumer Protection Act — Mont. Code Ann. § 30-14-101 et seq.

Section 30-14-103 declares that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." A claimant invoking the MCPA must identify conduct that satisfies that standard and must establish the ascertainable-loss and causation requirements in § 30-14-133.

Under § 30-14-133(1)(a), "a consumer who suffers any ascertainable loss of money or property . . . as a result of the use or employment by another person of a method, act, or practice declared unlawful by 30-14-103 may bring an individual action but not a class action . . . to recover money damages in the amount of any ascertainable loss of money or property or $500, whichever is greater." The court "may not award punitive damages but may, in its discretion, award up to three times the money damages . . . if actual damages do not exceed $100,000," and may grant other equitable relief.

Under § 30-14-133(3), the court "may award the prevailing party reasonable attorney fees," except that fees are unavailable if the consumer recovers actual damages of $100,000 or more, and fees are "limited to no more than $250 an hour."

MCPA — INDIVIDUAL ACTION ONLY: The MCPA private action is expressly individual, not class (§ 30-14-133(1)(a)). The $500 floor is keyed to "ascertainable loss"; the federal TCPA's per-call statutory damages are the more direct measure for unwanted calls. Upon commencement of an MCPA action the clerk of court must mail a copy of the complaint to the Department and the appropriate county attorney (§ 30-14-133(2)).

IV. Statement of Violations

Based on the call log in Section II, Respondent committed at least the following violations as to Claimant:

☐ Calls/texts to a cellular number using an ATDS without prior express consent — 47 U.S.C. § 227(b)(1)(A)
☐ Calls/texts to a cellular number using an artificial or prerecorded voice without consent — 47 U.S.C. § 227(b)(1)(A)
☐ Prerecorded calls to a residential line without consent — 47 U.S.C. § 227(b)(1)(B)
☐ Telemarketing without prior express written consent — 47 C.F.R. § 64.1200(a)(2)
☐ More than one call within 12 months by/on behalf of the same entity to a number on the National Do-Not-Call Registry — 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)
☐ Calls continued more than 10 business days after an internal do-not-call request — 47 C.F.R. § 64.1200(d)(3)
☐ Unsolicited fax advertisement(s) — 47 U.S.C. § 227(b)(1)(C)
☐ Automated selection and dialing followed by a recorded message for a purpose listed in Mont. Code Ann. § 45-8-216(1)
☐ Unfair or deceptive act or practice (MCPA "unlawful" predicate) — Mont. Code Ann. § 30-14-103
☐ Other — [_________________________________]

V. Damages and Remedies Calculation

VI. Demand

Pursuant to the authorities above, Claimant demands that Respondent, within [____] days (no later than [__/__/____]):

1. Immediately cease and desist all telephone calls, text messages, and facsimile transmissions to Claimant's number(s) and direct all further communications to the undersigned;
2. Place Claimant's number(s) on Respondent's internal do-not-call list and confirm the same in writing;
3. Preserve all evidence identified in Section VII below;
4. Tender settlement of Claimant's claims in the amount of $[__________] in full and final resolution; and
5. Identify every entity, lead generator, dialer vendor, and client on whose behalf the calls/texts were placed.

If Respondent contends it had Claimant's prior express (written) consent, Respondent must produce a copy of that consent, including the date, method, and signed writing, within the response period.

VII. Litigation Hold / Evidence Preservation Notice

Respondent is on formal notice of its duty to preserve all documents, electronically stored information (ESI), and tangible evidence relevant to the claims, and must immediately suspend any routine destruction or overwriting as applied to:

☐ Outbound and inbound call detail records (CDRs) and dialer logs for Claimant's number(s)
☐ Records identifying the dialing equipment used and its capacity (ATDS analysis)
☐ Prerecorded/artificial-voice audio files and text/SMS content and templates
☐ Consent records, lead-source data, opt-in records, and any signed consent writings
☐ Internal and National Do-Not-Call scrubbing records and policies (31-day scrub logs)
☐ Internal do-not-call lists and records of honoring opt-out requests
☐ Compliance records under Mont. Code Ann. § 45-8-216 (live-operator-permission and preexisting-relationship records)
☐ Caller-ID configuration and any spoofing/blocking records
☐ Contracts, agency agreements, and indemnity terms with dialer vendors and lead generators
☐ Backup tapes, cloud-backed copies, audit logs, version histories, and metadata for the foregoing

Spoliation may result in sanctions and adverse-inference instructions.

VIII. Response Deadline and Method

Respondent's written response must be received no later than [__/__/____].

Silence, a boilerplate denial, or continued calling will be treated as a refusal to resolve this matter and may result in a civil action under the TCPA (47 U.S.C. § 227(b)(3), (c)(5)) and, when its elements are satisfied, Mont. Code Ann. § 30-14-133. Claimant may also submit the § 45-8-216 conduct to the Federal Communications Commission, the Federal Trade Commission, and the Montana Department of Justice — Office of Consumer Protection for appropriate enforcement review.

This letter is sent without prejudice to all of Claimant's rights and remedies, which are expressly reserved.

Signature Block

Respectfully submitted,

[________________________________]
[ATTORNEY NAME] (or Claimant pro se)
Montana State Bar No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City, MT ZIP]
Telephone: [____________]
Email: [____________]
Counsel for Claimant [CLAIMANT NAME] (if represented)

cc: ☐ Claimant
☐ File

Pre-Send Checklist

☐ Verified Respondent's legal name and registered agent via Montana Secretary of State (https://biz.sosmt.gov/search/business)
☐ Confirmed each call/text/fax is documented with date, time, and calling number in the Section II log
☐ Confirmed whether Claimant's number was on the National Do-Not-Call Registry and the registration date
☐ Confirmed the federal claim is within the 4-year SOL (28 U.S.C. § 1658)
☐ Confirmed § 45-8-216 is used only within its recorded-message scope and is not presented as an express private damages action or an automatic MCPA predicate
☐ Confirmed the MCPA claim is brought as an individual action (no class) and considered the actual-or-$500 floor and treble discretion (§ 30-14-133)
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all <!-- --> comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by Montana-licensed counsel before transmission

Sources and References

• Telephone Consumer Protection Act, 47 U.S.C. § 227: https://www.law.cornell.edu/uscode/text/47/227
• FCC TCPA 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 SOL): https://www.law.cornell.edu/uscode/text/28/1658
• Mont. Code Ann. § 45-8-216 (unlawful automated telephone solicitation): https://mca.legmt.gov/bills/mca/title_0450/chapter_0080/part_0020/section_0160/0450-0080-0020-0160.html
• Mont. Code Ann. § 30-14-103 (MCPA — unlawful practices): https://mca.legmt.gov/bills/mca/title_0300/chapter_0140/part_0010/section_0030/0300-0140-0010-0030.html
• Mont. Code Ann. § 30-14-133 (MCPA — damages, attorney fees): https://mca.legmt.gov/bills/mca/title_0300/chapter_0140/part_0010/section_0330/0300-0140-0010-0330.html
• Montana Department of Justice — Office of Consumer Protection: https://dojmt.gov/consumer/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)