TCPA Demand Letter - South Dakota

SOUTH DAKOTA TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City, South Dakota ZIP]
Telephone: [(___) ___-____]
Email: [______________________]
[SD 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; S.D.C.L. § 49-31-99 et seq. (Do-Not-Call); South Dakota Deceptive Trade Practices Act, S.D.C.L. § 37-24-1 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 South Dakota resident residing at [ADDRESS], County of [____________], State of South Dakota, 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 (which South Dakota adopts as its state register under S.D.C.L. § 49-31-103) 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. Respondent is a "telephone solicitor" within the meaning of S.D.C.L. ch. 49-31.

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and/or facsimile transmissions to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call register):

Total documented violations: [____]

III. Legal Framework — Overlapping Federal and South 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. South Dakota Telephone-Solicitation / Do-Not-Call Statutes — S.D.C.L. ch. 49-31

• No unsolicited calls to registered numbers — S.D.C.L. § 49-31-99: "Any telephone solicitor who makes unsolicited telephone calls shall institute procedures that comply with the provisions of this chapter for obtaining a list of persons who do not wish to receive unsolicited telephone calls made by or on behalf of the telephone solicitor. No telephone solicitor may make an unsolicited telephone call to any number listed on the register."
• The register — S.D.C.L. § 49-31-100: governs operation of and subscription to the South Dakota Do-Not-Call register and the related fees.
• Use of national registry — S.D.C.L. §§ 49-31-101, 49-31-103: the South Dakota Public Utilities Commission may provide register numbers to the FTC for the national "do-not-call" registry and may use the national registry as the state register. In practice, the Commission uses South Dakota residential subscribers listed on the national Do-Not-Call list as the state register.
• Definitions — S.D.C.L. § 49-31-1.5 ("unsolicited telephone call") and § 49-31-1.6 ("established business relationship").

C. South Dakota Deceptive Trade Practices and Consumer Protection Act — S.D.C.L. ch. 37-24 [SD UDAP — FLAGGED]

The optional state claim must identify knowing conduct within a selected § 37-24-6 branch and connect it to a sale or advertisement of merchandise. Do not assume every TCPA or telemarketing violation is automatically a § 37-24-6 violation.

IMPORTANT — SD UDAP REMEDY LIMITATION: Section 37-24-31 permits actual damages caused by a qualifying § 37-24-6 act. Current § 37-24-6(1) says “Knowingly”; it does not add “intentionally.” Identify the sale or advertisement of merchandise and every element before retaining the state claim. The federal TCPA supplies the statutory-damages route for qualifying calls.

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)
☐ Unsolicited call to a number on the South Dakota / national register — S.D.C.L. § 49-31-99
☐ Knowing deceptive act or practice tied to a sale or advertisement of merchandise — S.D.C.L. § 37-24-6
☐ 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 or an established business relationship under S.D.C.L. § 49-31-1.6, Respondent must produce a copy of that consent or proof of the relationship, including the date, method, and any 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
☐ National and South Dakota 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 and procedures under S.D.C.L. § 49-31-99
☐ 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 South Dakota law (S.D.C.L. § 49-31-99 et seq.; § 37-24-1 et seq.), and may include a complaint to the Federal Communications Commission, the Federal Trade Commission, the South Dakota Public Utilities Commission, and the South Dakota 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)
South Dakota State Bar No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City, SD 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 the South Dakota Secretary of State business search (https://sosenterprise.sd.gov/businessservices/business/filings.aspx)
☐ 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/South Dakota Do-Not-Call register and the registration date
☐ Confirmed the federal claim is within the 4-year SOL (28 U.S.C. § 1658) and any SD DTPA claim within the 4-year SOL (S.D.C.L. § 37-24-33)
☐ Confirmed the optional SD claim seeks actual damages and identified knowing conduct tied to a sale or advertisement under § 37-24-6
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all `` comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by South Dakota-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
• S.D.C.L. § 49-31-99 (telephone solicitors; no unsolicited calls to register): https://sdlegislature.gov/Statutes/49-31-99
• S.D.C.L. ch. 49-31 (Telecommunications Services; Do-Not-Call): https://sdlegislature.gov/Statutes/49-31
• South Dakota Do Not Call Law (PUC): https://donotcall.sd.gov/Law.aspx
• S.D.C.L. § 37-24-6 (deceptive act or practice): https://sdlegislature.gov/Statutes/37-24-6
• S.D.C.L. § 37-24-31 (private action; actual damages): https://sdlegislature.gov/Statutes/37-24-31
• S.D.C.L. ch. 37-24 (Deceptive Trade Practices and Consumer Protection): https://sdlegislature.gov/Statutes/37-24
• South Dakota Attorney General — Consumer Protection: https://consumer.sd.gov/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)