TCPA Demand Letter - Nebraska

NEBRASKA TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City, State ZIP]
Telephone: [____________]
Email: [____________]
[NE 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; Nebraska Automatic Dialing-Announcing Devices Act, Neb. Rev. Stat. §§ 86-236 to 86-257; Nebraska Uniform Deceptive Trade Practices Act, § 87-301 et seq.; Nebraska Consumer Protection Act, § 59-1601 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 Nebraska resident residing at [ADDRESS], County of [____________], State of Nebraska, 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and/or facsimile transmissions to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call registry):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 Nebraska 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. Nebraska Automatic Dialing-Announcing Devices Act — Neb. Rev. Stat. §§ 86-236 to 86-257

Nebraska regulates automated calling through the Automatic Dialing-Announcing Devices Act (§§ 86-236 to 86-257). Section 86-247 requires that "[a]ll telephone solicitation messages transmitted by an automatic dialing-announcing device shall: (1) [a]t the beginning of the message, state clearly the identity of the person making the call; and (2) [d]uring or after the message, state clearly the telephone number, other than that of the device which made the call, or address of such person." The Act also restricts how automatic dialing-announcing devices may be used (e.g., § 86-246 prohibits use that simultaneously engages two or more lines of a multiline business system).

NOTE: Nebraska's Automatic Dialing-Announcing Devices Act is principally a regulatory/penalty framework. It is cited here to establish the unlawfulness of Respondent's automated calling and as a predicate for the state UDAP claims; the private damages recovery comes from the federal TCPA and, where applicable, the NCPA, below.

C. Nebraska Uniform Deceptive Trade Practices Act — Neb. Rev. Stat. § 87-301 et seq.

Under § 87-303(a), "[a] person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity . . . . Proof of monetary damage, loss of profits, or intent to deceive is not required." Under § 87-303(b), the court "in its discretion may award attorney's fees to the prevailing party if . . . the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive." The UDTPA thus supplies injunctive relief against further unlawful calling and a fee shift for willful conduct.

D. Nebraska Consumer Protection Act — Neb. Rev. Stat. § 59-1601 et seq.

Section 59-1602 declares "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" unlawful. Under § 59-1609, "[a]ny person who is injured in his or her business or property by a violation of sections 59-1602 to 59-1606 . . . may bring a civil action in the district court to enjoin further violations, to recover the actual damages sustained . . . , or both, together with the costs of the suit, including a reasonable attorney's fee," and the court "may in its discretion, increase the award of damages," but any "increased award for violation of section 59-1602 shall not exceed one thousand dollars."

NCPA — PUBLIC-INTEREST ELEMENT: A private NCPA action requires conduct that "impacts the public interest," Nelson v. Lusterstone Surfacing Co., 258 Neb. 678 (2000). Mass-marketing telephone solicitation and a pattern of similar calls to other Nebraska consumers typically satisfy this element. The NCPA carries a four-year limitations period (§ 59-1612).

DAMAGES ENGINE — FEDERAL TCPA: Under § 227(b)(3), monetary relief is the greater of actual loss or $500 per violation, with any willful-or-knowing increase discretionary and capped at three times that amount. The Nebraska statutes are pleaded chiefly for injunctive relief, attorney fees, and the discretionary up-to-$1,000 enhancement, and to anchor the state-law dimension of this dispute.

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)
☐ Automatic dialing-announcing device message lacking required caller identity/callback — Neb. Rev. Stat. § 86-247
☐ Deceptive trade practice (UDTPA) — Neb. Rev. Stat. § 87-301 et seq.
☐ Unfair or deceptive act or practice (NCPA) — Neb. Rev. Stat. § 59-1602
☐ 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 the Nebraska Automatic Dialing-Announcing Devices Act (§§ 86-236 to 86-257), including caller-ID/message-content records under § 86-247
☐ 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 will result in the filing of a civil action under the TCPA (47 U.S.C. § 227(b)(3), (c)(5)) and Nebraska law (Neb. Rev. Stat. §§ 86-236 to 86-257; § 87-301 et seq.; § 59-1601 et seq.), and may include a complaint to the Federal Communications Commission, the Federal Trade Commission, and the Nebraska Attorney General's Consumer Protection 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)
Nebraska State Bar No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City, NE 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 Nebraska Secretary of State (https://www.nebraska.gov/sos/corp/corpsearch.cgi)
☐ 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) and any NCPA claim within the 4-year SOL (§ 59-1612)
☐ Documented facts satisfying the NCPA "public interest" element (Nelson v. Lusterstone)
☐ Confirmed the NCPA discretionary increase is capped at $1,000 (§ 59-1609) — damages come primarily from the TCPA
☐ Documented facts supporting willfulness for UDTPA attorney fees (§ 87-303(b))
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all <!-- --> comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by Nebraska-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
• Neb. Rev. Stat. § 86-247 (telephone solicitation message; ID requirements): https://law.justia.com/codes/nebraska/chapter-86/statute-86-247/
• Neb. Rev. Stat. Chapter 86 (Automatic Dialing-Announcing Devices Act): https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=86
• Neb. Rev. Stat. § 87-302 (deceptive trade practices enumerated): https://nebraskalegislature.gov/laws/statutes.php?statute=87-302
• Neb. Rev. Stat. § 87-303 (UDTPA injunction; willful-violation attorney fees): https://nebraskalegislature.gov/laws/statutes.php?statute=87-303
• Neb. Rev. Stat. § 59-1602 (NCPA — unlawful practices): https://nebraskalegislature.gov/laws/statutes.php?statute=59-1602
• Neb. Rev. Stat. § 59-1609 (NCPA — private action; damages, costs, attorney fees): https://law.justia.com/codes/nebraska/chapter-59/statute-59-1609/
• Nebraska Attorney General — Consumer Protection: https://ago.nebraska.gov/consumer-protection
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)
• Nelson v. Lusterstone Surfacing Co., 258 Neb. 678 (2000) (NCPA public-interest element)