TCPA Demand Letter - North Dakota

NORTH DAKOTA TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City], North Dakota [ZIP]
Telephone: [____________]
Email: [____________]
ND Bar / ID No.: [____________] (if attorney)
File No.: [____________]

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; N.D. Cent. Code ch. 51-28 (Telephone Solicitations); N.D. Cent. Code ch. 51-15 (Unlawful Sales or Advertising Practices)
Claimant: [CLAIMANT FULL NAME]
Claimant Telephone Number(s) Called: [____________]
Date Range of Violations: [__/__/____] through [__/__/____]
Number of Offending Calls/Texts/Messages: [____]

I. Parties

Claimant: [CLAIMANT FULL NAME], a North Dakota resident residing at [ADDRESS], County of [____________], State of North Dakota. For any claim based on a provision protecting a "subscriber," Claimant ☐ subscribed to the residential telephone line(s) [____________] / ☐ lived or resided with the person who subscribed to the line(s), as defined by N.D. Cent. Code § 51-28-01(6). Claimant ☐ registered the number(s) on the National Do-Not-Call Registry / ND do-not-call list 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]. Claimant alleges Respondent is a "caller" within the meaning of N.D. Cent. Code § 51-28-01(2) because Respondent ☐ placed the calls/messages directly / ☐ caused them to be placed by [AGENT, LEAD GENERATOR, OR DIALER]. [Counsel must analyze any direct or vicarious-liability theory under the law governing the particular claim.]

II. The Offending Communications (Call Log)

Respondent and/or its agents placed the following calls, text messages, prerecorded messages, and/or faxes to Claimant's telephone number(s) without the consent required for the selected claim, after consent was revoked, after a do-not-call request, and/or while the number was on a Do-Not-Call list:

Total documented violations: [____]

III. Legal Framework — Overlapping Federal and North Dakota 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. North Dakota Telephone Solicitations — N.D. Cent. Code ch. 51-28

Chapter 51-28 imposes the following operative duties on a "caller":

• Prerecorded/synthesized-voice messages — § 51-28-02: a caller may not use an ADAD or deliver a prerecorded or synthesized voice message to a subscriber unless the subscriber knowingly requested, consented to, permitted, or authorized receipt of the message, or it is immediately preceded by a live operator who obtains consent. The section also excludes specified public-safety, school-district, current-business-relationship, and employee-work-schedule messages.
• ADAD operation — § 51-28-04: the device must disconnect within ten seconds after the subscriber terminates the call; a random/sequential-number generator may not be used unless emergency, hospital, cellular/charged, and do-not-call numbers are excluded.
• Calling hours — § 51-28-05: no ADAD use and no telephone solicitation before 8:00 a.m. or after 9:00 p.m. at the subscriber's location.
• Do-Not-Call — § 51-28-06: no "telephone solicitation," as defined with the exclusions in § 51-28-01(8), to a subscriber who has been on the ND do-not-call list or the FTC National Do-Not-Call Registry for at least 31 days.
• Caller identification — § 51-28-07, § 51-28-08: the caller must immediately and clearly state the individual caller's true first and last name, telephone number, city and state, and the business represented, and may not knowingly block or deliberately circumvent the subscriber's caller-ID service.

Private enforcement — § 51-28-11: "Any person who receives a telephone solicitation or message in violation of this chapter may bring an action to enjoin such violation, or for damages, or both. The court may award the plaintiff the plaintiff's actual damages or damages up to two thousand dollars for each violation, whichever is greater. The court may award the plaintiff costs, expenses, and reasonable attorney's fees." Each solicitation or message is a separate violation (§ 51-28-19).

IMPORTANT — DAMAGES & DEADLINE [FLAGGED]: Do not plead the $5,000–$10,000-per-violation range for ordinary solicitation/ADAD violations. That higher range comes from § 51-28-08.1(3) and applies only to conduct prohibited by § 51-28-08.1(1): knowingly transmitting misleading or inaccurate caller-ID information with intent to defraud or cause harm, or knowingly using or displaying a number the caller does not own or have the owner's consent to use. For other ch. 51-28 violations, § 51-28-11 permits actual damages or up to $2,000 per violation, whichever is greater. Section 51-28-12 bars an action more than one year after discovery or more than one year after termination of an Attorney General proceeding, whichever is later.

C. North Dakota Unlawful Sales or Advertising Practices — N.D. Cent. Code ch. 51-15

A violation of ch. 51-28 constitutes a violation of ch. 51-15 under § 51-28-17, but that does not automatically create a private damages claim. Section 51-15-09 does not bar a claim against a person who acquired money or property by an unlawful practice. If that predicate and an underlying claim are established, a knowing-conduct finding permits up to three times the actual damages proven and requires an award of costs, disbursements, and actual reasonable attorney fees. Section 51-15-12, not § 51-15-09, supplies a four-year period after accrual and provides that accrual may not be deemed to occur until discovery of the facts constituting the violation. [Counsel must determine whether the money-or-property and sale-or-advertisement predicates are satisfied.]

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)
☐ Artificial or prerecorded calls to a residential line without consent and outside the applicable statutory or FCC exemption — 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(3)
☐ 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) outside the statutory exception — 47 U.S.C. § 227(b)(1)(C)
☐ ADAD / prerecorded message without subscriber consent and outside a § 51-28-02 exception — N.D. Cent. Code § 51-28-02
☐ ADAD failure to disconnect / improper random-generator use — N.D. Cent. Code § 51-28-04
☐ Solicitation before 8:00 a.m. or after 9:00 p.m. — N.D. Cent. Code § 51-28-05
☐ Communication fitting the § 51-28-01(8) definition of telephone solicitation to a Do-Not-Call / National Registry number (31+ days) — N.D. Cent. Code § 51-28-06
☐ Failure to identify caller / caller-ID blocking — N.D. Cent. Code § 51-28-07, § 51-28-08
☐ Caller-ID conduct satisfying every element of § 51-28-08.1(1) (triggers the subsection (3) $5,000–$10,000 action) — N.D. Cent. Code § 51-28-08.1
☐ Ch. 51-15 unlawful-practice claim, including the § 51-15-02 elements and § 51-15-09 money-or-property predicate — N.D. Cent. Code §§ 51-15-02, 51-15-09 (via § 51-28-17)
☐ 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 prerecorded messages 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/messages were placed.

If Respondent contends it had Claimant's prior express consent or an established business relationship under § 51-28-01(4), Claimant demands the signed writing or other record supporting any written-consent theory and the transaction records supporting the date and nature of any claimed established business relationship.

VII. Litigation Hold / Evidence Preservation Notice

Claimant reasonably anticipates litigation and requests preservation of the following documents, electronically stored information (ESI), and tangible evidence. Respondent should have counsel determine its preservation obligations, including whether routine destruction or overwriting must be suspended for:

☐ 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 / ADAD analysis, including random/sequential generator and 10-second disconnect)
☐ Prerecorded/synthesized-voice audio files and text/SMS content and templates
☐ Consent records, established-business-relationship records (§ 51-28-01(4)), lead-source data, opt-in records, and signed consent writings
☐ ND do-not-call list, National Registry, and internal Do-Not-Call scrubbing records and policies (31-day scrub logs)
☐ Caller identification records and any spoofing/blocking records (§ 51-28-08, § 51-28-08.1)
☐ 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

Claimant reserves the right to seek any preservation or spoliation remedy supported by the governing law and facts.

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 and any supported North Dakota claim, and in complaints to the Federal Communications Commission, the Federal Trade Commission, and the North Dakota Attorney General's Consumer Protection and Antitrust Division.

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)
North Dakota Bar / ID No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City], North Dakota [ZIP]
Telephone: [____________]
Email: [____________]
Counsel for Claimant [CLAIMANT NAME] (if represented)

cc: ☐ Claimant
  ☐ North Dakota Attorney General — Consumer Protection and Antitrust Division
  ☐ File

Pre-Send Checklist

☐ Verified Respondent's legal name and registered agent via ND Secretary of State (https://firststop.sos.nd.gov/search/business)
☐ Confirmed each call/text/message 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 / ND list and for at least 31 days (§ 51-28-06)
☐ Applied the correct ch. 51-28 damages: § 51-28-11 (actual damages or up to $2,000, whichever is greater) for general violations; § 51-28-08.1 ($5,000–$10,000 or actual damages, whichever is greater) ONLY when every subsection (1) element is met
☐ Calendared both alternatives in § 51-28-12 and the 4-year ch. 51-15 rule (§ 51-15-12) and general 4-year federal rule (28 U.S.C. § 1658)
☐ For any § 51-15-09 theory, documented the qualifying underlying claim, acquisition of money/property, actual damages, and facts supporting knowing conduct
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all <!-- --> comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by North Dakota-licensed counsel before transmission

Sources and References

• Telephone Consumer Protection Act, 47 U.S.C. § 227: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title47-section227&num=0&edition=prelim
• 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 (general 4-year federal limitations period): https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1658&num=0&edition=prelim
• N.D. Cent. Code ch. 51-28 (Telephone Solicitations — full chapter): https://ndlegis.gov/cencode/t51c28.pdf
• N.D. Cent. Code § 51-28-11 (private enforcement — actual damages or up to $2,000): https://ndlegis.gov/cencode/t51c28.pdf
• N.D. Cent. Code § 51-28-08.1 (caller-ID spoofing; $5,000–$10,000 private action): https://ndlegis.gov/cencode/t51c28.pdf
• N.D. Cent. Code § 51-28-12 (limitations alternatives): https://ndlegis.gov/cencode/t51c28.pdf
• N.D. Cent. Code ch. 51-15 (Unlawful Sales or Advertising Practices): https://ndlegis.gov/cencode/t51c15.pdf
• North Dakota Attorney General — Consumer Protection: https://attorneygeneral.nd.gov/consumer-resources/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition): https://www.supremecourt.gov/opinions/20pdf/19-511_p86b.pdf