TCPA Demand Letter - New Hampshire

NEW HAMPSHIRE TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City, State ZIP]
Telephone: [____________]
Email: [____________]
[NH 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; New Hampshire Telemarketing Act, RSA ch. 359-E; New Hampshire Consumer Protection Act, RSA ch. 358-A
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 New Hampshire resident residing at [ADDRESS], County of [____________], State of New Hampshire, 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and/or facsimile transmissions to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call registry):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 New Hampshire Liability

Potential claims may arise under the federal TCPA and one or more New Hampshire provisions, but RSA chapter 359-E contains two distinct subdivisions with different definitions and remedies. Classify the equipment and call campaign before selecting a claim or calculating recovery.

A. Federal TCPA — 47 U.S.C. § 227

The federal TCPA is a 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. New Hampshire Telemarketing Act — RSA ch. 359-E

RSA 359-E separately regulates automatic dialing systems (§§ 1–6) and defined telemarketing sales calls (§§ 7–11):

• ATDS registration — RSA 359-E:2: a person intending to use an automatic telephone dialing system for solicitation in New Hampshire must register with the Consumer Protection and Antitrust Bureau at least 10 business days before using the system and pay the $20 annual fee.
• ATDS operation — RSA 359-E:4, :5, and :5-a: the statute separately governs 30-second disconnect, immediate identification, and transmission of nonmisleading caller-identification information.
• Telemarketing classification — RSA 359-E:7: the sales-call subdivision applies only after its definitions are satisfied, including the more-than-five-calls-per-month element and the listed exclusions from “telemarketing sales call.”
• National Do-Not-Call and FTC rule — RSA 359-E:8: the state provision uses the do-not-call registry maintained by the Federal Trade Commission and also requires compliance with the FTC Telemarketing Sales Rule by covered persons and persons who would be covered if the calls were interstate.
• Caller identification — RSA 359-E:5 / 359-E:5-a: telemarketers must identify themselves and may not block or falsify caller-ID information.
• Automatic-dialer subdivision remedies — RSA 359-E:6: a violation of §§ 1–6 is an unfair or deceptive act or practice under RSA 358-A:2, with chapter 358-A remedies available in addition to other remedies.
• Sales-call subdivision remedies — RSA 359-E:11: after investigation and a violation finding, the Department of Justice imposes a $5,000 civil penalty for each violation. An injured person may bring the separate private action in paragraph II. Paragraph III states a detailed routine-business-practice defense that must be evaluated before asserting liability.

C. New Hampshire Consumer Protection Act — RSA ch. 358-A [ENHANCED DAMAGES — FLAGGED]

RSA 358-A:2 makes it unlawful to use an unfair method of competition or unfair or deceptive act or practice in trade or commerce within New Hampshire. RSA 359-E:6 supplies that classification for violations of the automatic-dialing subdivision. A sales-call-subdivision violation should proceed under RSA 359-E:11 unless independently supported facts establish a chapter 358-A claim.

RSA 358-A:10 REMEDY: An injured person may sue for damages and appropriate equitable relief. If the court finds for the plaintiff, recovery is actual damages or $1,000, whichever is greater. A willful or knowing violation requires an award between two and three times that amount, and a prevailing plaintiff receives costs and reasonable attorney fees. Do not multiply the $1,000 minimum by call count unless controlling authority for the selected claim and facts supports that calculation.

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)
☐ Defined telemarketing sales call to a number on the National Do-Not-Call Registry or conduct violating the incorporated FTC rule — RSA 359-E:7–:8
☐ Use of ATDS for solicitation without timely NH registration — RSA 359-E:2
☐ Caller-ID blocking/falsification or failure to identify — RSA 359-E:5, 359-E:5-a
☐ Automatic-dialer-subdivision violation constituting an unfair or deceptive act or practice — RSA 359-E:6; RSA 358-A:2
☐ Injury from a telemarketing-sales-call-subdivision violation — RSA 359-E:11, II
☐ 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) and NH RSA 359-E:2 registration records
☐ 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
☐ Caller-ID configuration and any spoofing/blocking records (RSA 359-E:5, 359-E:5-a)
☐ 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 and the applicable New Hampshire provision, including RSA 359-E:6, RSA 359-E:11, and—where independently supported—RSA 358-A:10, as well as regulatory complaints.

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)
New Hampshire Bar No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City, NH 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 NH Secretary of State (https://quickstart.sos.nh.gov/online/BusinessInquire)
☐ 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); calendared the NH CPA SOL (RSA 508:4) with counsel
☐ Classified the conduct under RSA 359-E:1–:6 and/or RSA 359-E:7–:11 before selecting the remedy
☐ Avoided treating the $1,000 minimum in RSA 359-E:11 or RSA 358-A:10 as automatically recoverable per call
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all <!-- --> comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by New Hampshire-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
• N.H. RSA ch. 359-E (Telemarketing): https://gc.nh.gov/rsa/html/XXXI/359-E/359-E-mrg.htm
• N.H. RSA ch. 358-A (Consumer Protection Act): https://www.gencourt.state.nh.us/rsa/html/XXXI/358-A/358-A-mrg.htm
• N.H. RSA 358-A:2 (Acts Unlawful): https://gc.nh.gov/rsa/html/XXXI/358-A/358-A-2.htm
• N.H. RSA 358-A:10 (Private Actions): https://gc.nh.gov/rsa/html/XXXI/358-A/358-A-10.htm
• New Hampshire DOJ — Consumer Protection and Antitrust Bureau: https://www.doj.nh.gov/consumer/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)