TCPA Demand Letter - West Virginia

WEST VIRGINIA TCPA DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER NAME OR LAW FIRM]
[Street Address]
[City, State ZIP]
Telephone: [____________]
Email: [____________]
[WV 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, NOTICE OF RIGHT TO CURE UNDER W. VA. CODE § 46A-5-108, AND DEMAND TO SETTLE CLAIMS — Telephone Consumer Protection Act, 47 U.S.C. § 227; West Virginia Telemarketing Act, W. Va. Code §§ 46A-6F-101 et seq.; West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A-6-101 et seq.
Claimant: [CLAIMANT FULL NAME]
Claimant Telephone Number(s) Called: [____________]
Date Range of Violations: [__/__/____] through [__/__/____]
Number of Offending Calls/Texts: [____]

I. Parties

Claimant: [CLAIMANT FULL NAME], a West Virginia resident residing at [ADDRESS], County of [____________], State of West Virginia, 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 in West Virginia 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 ("telemarketer") acting on its behalf, for which Respondent is liable.

II. The Offending Communications (Call Log)

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following calls and/or text messages to Claimant's telephone number(s) without prior express consent (or after consent was revoked / after a do-not-call request / while the number was on a Do-Not-Call registry):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

A. Federal TCPA — 47 U.S.C. § 227

• Autodialed / prerecorded calls and texts to cell phones — § 227(b)(1)(A): prohibits calls or texts using an ATDS or an artificial or prerecorded voice to a cellular number without prior express consent; telemarketing requires prior express written consent (47 C.F.R. § 64.1200(a)(2)). Per Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), an ATDS uses a random or sequential number generator to store or produce numbers.
• Prerecorded calls to residential lines — § 227(b)(1)(B).
• 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 request — 47 C.F.R. § 64.1200(d).

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.

B. West Virginia Telemarketing Act — W. Va. Code §§ 46A-6F-101 et seq.

West Virginia's telemarketing statute provides an independent state-law damages claim against telemarketers:

• Unfair or deceptive acts — W. Va. Code § 46A-6F-501: prohibits a range of unfair or deceptive telemarketing acts and practices (with a related cause of action and limitations period in § 46A-6F-502).
• Abusive acts — W. Va. Code § 46A-6F-601: makes specified abusive telemarketing acts and practices a violation of the Act.
• Civil remedies — W. Va. Code § 46A-6F-701: if a telemarketer violates § 46A-6F-601, the consumer has a cause of action to recover actual damages and, in addition, a court-determined penalty of not less than $100 nor more than $3,000 (§ 46A-6F-701(a)); the related sale or lease is void and the consumer need not pay principal or finance charges (§ 46A-6F-701(b)); any consumer harmed by an abusive act shall receive injunctive or declaratory relief (§ 46A-6F-701(c)); and no action may be brought more than two years after the violation or the due date of the last scheduled payment, whichever is later.

C. West Virginia Consumer Credit and Protection Act (WVCCPA) — W. Va. Code §§ 46A-6-101 et seq.

The WVCCPA (W. Va. Code § 46A-6-104) declares unlawful any unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce. Where the calls/texts involved deceptive telemarketing tied to a consumer transaction, the WVCCPA's private right of action (W. Va. Code § 46A-6-106) allows recovery of actual damages or $200 to $1,000, whichever is greater, plus reasonable attorney fees.

MANDATORY PRE-SUIT NOTICE — W. Va. Code § 46A-5-108: Before bringing a private WVCCPA action under §§ 46A-6, Claimant must serve a written notice describing the alleged violations and afford Respondent a 45-day opportunity to cure. This letter is intended to serve as that § 46A-5-108 notice. The 45-day cure period and Respondent's response (or any "cure offer" under § 46A-5-108) must be calendared; failure to comply with the notice requirement is grounds for dismissal of the WVCCPA claim.

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)
☐ Abusive telemarketing act or practice — W. Va. Code § 46A-6F-601
☐ Unfair or deceptive telemarketing act or practice — W. Va. Code § 46A-6F-501
☐ Unfair or deceptive act in trade or commerce (WVCCPA) — W. Va. Code § 46A-6-104, if applicable
☐ Other — [_________________________________]

V. Damages and Remedies Calculation

VI. Demand

Pursuant to the authorities above, Claimant demands that Respondent, within [____] days (no later than [__/__/____]; and in no event later than the 45-day cure period under § 46A-5-108):

1. Immediately cease and desist all telephone calls and text 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 seller 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
☐ Telemarketer registration, bonding, and record-keeping records under W. Va. Code §§ 46A-6F-301 to 304
☐ Caller-ID configuration and any spoofing/blocking records
☐ Contracts, agency agreements, and indemnity terms with dialer vendors, sellers, 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, after the § 46A-5-108 cure period expires, will result in the filing of a civil action under the TCPA (47 U.S.C. § 227(b)(3), (c)(5)), the West Virginia Telemarketing Act (W. Va. Code § 46A-6F-701), and, where applicable, the WVCCPA (W. Va. Code § 46A-6-106), and may include a complaint to the Federal Communications Commission, the Federal Trade Commission, and the West Virginia Attorney General's Office.

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)
West Virginia State Bar I.D. No. [__________] (if attorney)
[Firm Name]
[Street Address]
[City, WV 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 West Virginia Secretary of State business search (https://apps.sos.wv.gov/business/corporations/)
☐ Confirmed each call/text 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 the WV Telemarketing Act claim within its 2-year SOL (§ 46A-6F-701)
☐ Served this letter as the § 46A-5-108 45-day pre-suit notice for any WVCCPA claim and calendared the cure period
☐ Preserved Claimant-side evidence (screenshots, voicemails, carrier records)
☐ Removed all `` comments
☐ Sent via certified mail, return receipt requested, and retained delivery confirmation
☐ Reviewed by West Virginia-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
• W. Va. Code § 46A-6F-601 (abusive acts or practices): https://code.wvlegislature.gov/46A-6F-601/
• W. Va. Code § 46A-6F-701 (civil remedies): https://code.wvlegislature.gov/46A-6F-701/
• W. Va. Code § 46A-6F-501 (unfair or deceptive acts): https://law.justia.com/codes/west-virginia/chapter-46a/article-6f/
• W. Va. Code § 46A-6-104 (unlawful acts; WVCCPA): https://code.wvlegislature.gov/46A-6-104/
• W. Va. Code § 46A-6-106 (WVCCPA private right of action): https://code.wvlegislature.gov/46A-6-106/
• W. Va. Code § 46A-5-108 (45-day pre-suit notice / right to cure): https://code.wvlegislature.gov/46A-5-108/
• National Do Not Call Registry: https://www.donotcall.gov/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (ATDS definition)