TCPA Violation Demand Letter - New York

TELEPHONE CONSUMER PROTECTION ACT VIOLATION DEMAND LETTER

State of New York — Federal and State Claims

SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[__/__/____]

[DEFENDANT COMPANY NAME]
ATTN: Legal Department / Registered Agent
[ADDRESS LINE 1]
[CITY, STATE ZIP]

Re: TCPA VIOLATION DEMAND — FEDERAL AND NEW YORK STATE CLAIMS
Consumer: [CONSUMER FULL NAME]
Telephone Number(s) Affected: [________________________________]
NY Do Not Call Registry Registration Date: [__/__/____]
National DNC Registration Date: [__/__/____]
Documented Violations: [____]
Total Statutory Exposure: $[________________________________]

Dear Sir or Madam:

This law firm represents [CONSUMER FULL NAME] ("Consumer") in connection with your company's violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, its FCC implementing regulations at 47 C.F.R. § 64.1200, and the following New York state statutes:

• N.Y. General Business Law § 349 — Deceptive Acts and Practices
• N.Y. General Business Law § 399-z — New York Do Not Call Law
• N.Y. General Business Law § 399-p — Regulation of Automated Telephone Equipment
• N.Y. General Business Law § 350 — False Advertising (if applicable)

Your company's unauthorized calls and/or text messages to our Client entitle Consumer to substantial damages under both federal and New York law. The New York Attorney General's office is an active enforcer of GBL §§ 349 and 399-z and has broad authority to seek civil penalties of up to $11,000 per violation per day.

Please direct all future communications regarding this matter to our office and immediately and permanently cease all telephone communications with our Client.

I. LEGAL FRAMEWORK — FEDERAL AND NEW YORK

A. Federal TCPA — 47 U.S.C. § 227

The TCPA prohibits:

1. Autodialed / prerecorded calls to cell phones without prior express consent — 47 U.S.C. § 227(b)(1)(A)(iii). Damages: $500–$1,500 per call/text.

2. Prerecorded telemarketing calls to residential landlines without prior express written consent — 47 U.S.C. § 227(b)(1)(B). Damages: $500–$1,500 per call.

3. Telemarketing calls to numbers on the National Do-Not-Call Registry — 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c). Damages: $500–$1,500 per call.

4. Failure to honor Do-Not-Call requests within 30 days — 47 C.F.R. § 64.1200(d)(3). Damages: $500–$1,500 per violation.

The TCPA statute of limitations is four (4) years under 28 U.S.C. § 1658(a). Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012) (confirming federal question jurisdiction).

ATDS Definition Post-Facebook: Following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), an automatic telephone dialing system (ATDS) is equipment using a random or sequential number generator to store or produce numbers to be called. Evidence of ATDS use includes: dead-air pauses, prerecorded messages, generic call content, and high-volume simultaneous calling patterns.

B. New York Do Not Call Law — GBL § 399-z

New York maintains its own New York Do Not Call Registry, separate from and in addition to the National Do-Not-Call Registry. GBL § 399-z(5) prohibits telephone solicitations to any telephone number registered on the New York Do Not Call Registry.

Critical New York-Specific Features:

• Telemarketer Registration: Every person or entity engaging in telephone solicitation in New York must register with the New York Attorney General and pay an annual registration fee. GBL § 399-z(3). Failure to register is an independent violation.
• Calling Hours: Telephone solicitation is prohibited before 8:00 a.m. or after 9:00 p.m. local time of the called party. GBL § 399-z(6)(a).
• Caller Identification: The solicitor must provide their name and the name of the organization on whose behalf the call is made at the outset of the call. GBL § 399-z(6)(b).
• Do-Not-Call Honoring: Upon request, the solicitor must add the consumer's number to an internal do-not-call list and must not call that number again. GBL § 399-z(6)(c).
• AG Civil Penalties: The AG may seek civil penalties of up to $11,000 per violation per day against unregistered or non-compliant telemarketers. GBL § 399-z(9).
• AG Referral: This demand letter and supporting evidence will be provided to the NY AG's Consumer Frauds Bureau if this matter is not resolved. The AG may independently prosecute violations of GBL § 399-z.

C. New York Automated Telephone Equipment Law — GBL § 399-p

N.Y. GBL § 399-p specifically regulates the use of automated dialing-announcing devices (ADADs) in New York — a statute separate from and complementary to the federal TCPA.

Under GBL § 399-p(3):

• No person may use an automated dialing-announcing device to deliver a prerecorded message unless the called party has given prior express consent
• The message must state at the outset the name and telephone number of the person on whose behalf the call is being made
• A live operator must be available to answer questions during regular business hours
• The called party must be able to opt out of further calls during the message

Private Right of Action: GBL § 399-p(7) provides a private right of action for violations. Damages are $50 per violation or actual damages, whichever is greater. Courts have also permitted GBL § 349 claims to run alongside § 399-p claims.

D. New York GBL § 349 — Deceptive Acts and Practices

N.Y. GBL § 349 prohibits deceptive acts or practices in the conduct of any business, trade, or commerce in New York. Unauthorized telemarketing calls and the false or misleading representations made during such calls constitute deceptive practices. GBL § 349 does not require privity of contract.

Elements (GBL § 349 claim):

1. The conduct is consumer-oriented (directed at the public, not purely private conduct)
2. The conduct is materially misleading or deceptive
3. The consumer suffered injury as a result

Note: Unlike many consumer protection statutes, GBL § 349 does not require the consumer to have relied on the deceptive statement — only that it was misleading. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995).

GBL § 349(h) Remedies:

• Actual damages or $50 minimum, whichever is greater
• Treble damages up to $1,000 for willful or knowing violations
• Reasonable attorney's fees — this is a key New York advantage over the federal TCPA
• Injunctive relief

Statute of limitations: Three (3) years. CPLR § 214(2).

E. NYC Consumer Protection Law — NYC Admin. Code § 20-700 et seq.

For calls directed at or received by a New York City resident, additional claims may arise under the NYC Consumer Protection Law (NYC CPL), NYC Admin. Code § 20-700 et seq., enforced by the NYC Department of Consumer and Worker Protection (DCWP).

NYC CPL provides private rights of action with damages of actual damages or $50 (whichever is greater), treble damages up to $1,000 for willful violations, and attorney's fees. Unlike GBL § 349, NYC CPL explicitly covers deceptive practices regardless of public impact where individual consumers are harmed.

II. CONSUMER INFORMATION AND CONSENT STATUS

A. Consumer Information

B. Defendant Information

C. Consent Analysis

Consumer's consent status:

☐ No Consent Ever Given: Consumer never provided any form of consent to receive calls or texts from your company.

☐ No Prior Express Written Consent for Telemarketing: Consumer did not provide the signed, written consent required for autodialed or prerecorded telemarketing calls. 47 C.F.R. § 64.1200(f)(9).

☐ Scope of Consent Exceeded: Consumer provided limited consent that did not encompass the type of calls/texts received. Specifically: [________________________________]

☐ Consent Revoked — Verbal: Consumer verbally revoked all consent on [__/__/____] during a call at approximately [__:__ am/pm].

☐ Consent Revoked — Written: Consumer provided written revocation on [__/__/____] by [________________________________].

☐ Opt-Out Not Honored: Consumer texted "STOP" / requested removal on [__/__/____]. Calls/texts continued after the required 30-day honor period. 47 C.F.R. § 64.1200(d)(3).

☐ Number Reassigned: The telephone number was reassigned to Consumer on approximately [__/__/____]. Consumer never had any relationship with your company.

III. STATEMENT OF VIOLATIONS

A. Summary of Unauthorized Communications

[Continue as needed — or attach separate call log as Exhibit A]

Total Documented Violations: [____]
Estimated Additional Undocumented Violations: [____]

B. Violation Categories — Check All Applicable

Federal TCPA Violations:

☐ Autodialed calls to cellular phone without prior express consent — 47 U.S.C. § 227(b)(1)(A)(iii)
☐ Prerecorded voice calls to cellular phone without prior express consent — 47 U.S.C. § 227(b)(1)(A)
☐ Text messages sent via ATDS without prior express consent — 47 U.S.C. § 227(b)(1)(A)(iii)
☐ Prerecorded telemarketing calls to residential line without prior express written consent — 47 U.S.C. § 227(b)(1)(B)
☐ Prerecorded message lacking opt-out mechanism at beginning of call — 47 C.F.R. § 64.1200(b)(1)
☐ Calls to number on National Do-Not-Call Registry — 47 U.S.C. § 227(c)
☐ Telemarketing calls after Consumer requested company-specific do-not-call — 47 C.F.R. § 64.1200(d)(3)
☐ Calls outside permitted hours (before 8 a.m. or after 9 p.m. local time) — 47 C.F.R. § 64.1200(c)(1)
☐ Failure to identify caller and company at outset — 47 C.F.R. § 64.1200(d)(4)
☐ Calls/texts continued after consent was revoked

New York State Violations:

☐ Calls to number on New York Do Not Call Registry — GBL § 399-z(5)
☐ Failure to check New York Do Not Call Registry before calling — GBL § 399-z(4)
☐ Telemarketing without NY AG registration — GBL § 399-z(3)
☐ Calls outside NY permitted hours (before 8 a.m. or after 9 p.m.) — GBL § 399-z(6)(a)
☐ Failure to identify name and organization at outset of call — GBL § 399-z(6)(b)
☐ Failure to maintain or honor internal NY do-not-call list — GBL § 399-z(6)(c)
☐ Use of ADAD without prior express consent — GBL § 399-p(3)
☐ ADAD message failed to identify caller — GBL § 399-p(3)(a)
☐ ADAD call lacked live operator availability — GBL § 399-p(3)(c)
☐ ADAD call lacked opt-out mechanism — GBL § 399-p(3)(e)
☐ Deceptive acts or practices through unauthorized commercial solicitations — GBL § 349
☐ False or misleading statements during telemarketing calls — GBL § 349 / § 350

C. Evidence of ATDS Use

☐ Prerecorded or artificial voice message (not live human at start of call)
☐ "Dead air" / pause before live agent connection
☐ Substantially identical message content across multiple calls
☐ Generic content not personalized to Consumer
☐ Company marketing materials reference automated calling systems
☐ Calls at precise, automated intervals (e.g., daily at same time)
☐ Simultaneous calls to multiple consumer numbers
☐ Carrier metadata consistent with mass dialing platform
☐ Other: [________________________________]

IV. DAMAGES CALCULATION

A. Federal TCPA Statutory Damages — 47 U.S.C. § 227(b)(3) and § 227(c)(5)

Treble damages ($1,500/violation) apply where violations were willful or knowing. 47 U.S.C. § 227(b)(3)(C).

B. New York GBL § 349 Damages

C. New York GBL § 399-p Damages (ADAD Violations)

D. NYC Consumer Protection Law Damages (NYC Residents Only)

E. Combined Damages Summary

V. WILLFUL AND KNOWING VIOLATIONS

Your violations were willful and knowing, entitling Consumer to treble damages under 47 U.S.C. § 227(b)(3)(C) and GBL § 349(h), because:

☐ You continued calling after Consumer explicitly revoked consent on [__/__/____]
☐ You continued calling after Consumer requested placement on your internal do-not-call list
☐ You called a number registered on the National DNC Registry since [__/__/____]
☐ You called a number registered on the New York Do Not Call Registry since [__/__/____]
☐ You failed to register as a telemarketer with the NY AG as required by GBL § 399-z(3)
☐ You have been the subject of prior TCPA complaints, FCC inquiries, or NY AG enforcement actions
☐ You have been named as a defendant in prior TCPA class action or individual litigation
☐ Other evidence of willfulness: [________________________________]

VI. CLASS ACTION POTENTIAL

This matter may qualify for class treatment under CPLR Article 9 (New York class action rules) and/or Federal Rule of Civil Procedure 23. New York CPLR § 901(a) requires satisfaction of numerosity, commonality, typicality, adequacy of representation, and superiority. CPLR § 902 requires court certification.

If you have made similar unauthorized calls to other New York residents:

• The class could consist of all persons in New York who received similar unauthorized calls from your company within the applicable limitations period
• Each class member would be entitled to $500–$1,500 per violation under the TCPA
• Aggregate exposure in a certified class action could be substantial

We reserve the right to pursue this matter as a class action on behalf of Consumer and similarly situated individuals if individual settlement is not reached.

VII. PRESERVATION OF EVIDENCE

You are hereby directed to immediately preserve all documents and electronically stored information relating to our Client and your calling practices, including:

• All call records and metadata for calls to and from Consumer's telephone number(s)
• All text message records and content sent to Consumer
• All consent records, opt-in databases, and lead source documentation
• Do-not-call lists, suppression lists, and opt-out records
• Your company's NY AG telemarketer registration records
• Automatic dialing equipment specifications, dialer logs, and campaign records
• Vendor agreements with third-party lead generators, calling platforms, or list brokers
• Internal TCPA compliance policies and training materials
• All prior consumer complaints, FCC complaints, and litigation records related to your calling practices
• Communications with the FCC, FTC, or NY AG relating to your calling practices

Failure to preserve this evidence may result in sanctions, adverse inference instructions to the jury or arbitrator, and separate claims for spoliation under New York law. Spoliation sanctions in New York are governed by CPLR § 3126 and case law including Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (adopted in NY state courts).

VIII. SETTLEMENT DEMAND

To resolve this matter without the expense of litigation, we demand:

A. Monetary Compensation

Payment of $[________________________________] within thirty (30) days, representing:

B. Injunctive / Equitable Relief

1. Permanent removal of Consumer's telephone number(s) from all calling lists, databases, and marketing campaigns
2. Placement of Consumer's number(s) on your company's permanent internal do-not-call list
3. Written confirmation of items 1 and 2, signed by an authorized officer of your company
4. Compliance with NY AG telemarketer registration requirement (GBL § 399-z(3))

IX. FORUM AND FILING NOTICE

If this matter is not resolved within thirty (30) days, our Client is prepared to file in:

☐ U.S. District Court — Southern District of New York (500 Pearl St., New York, NY 10007)
☐ U.S. District Court — Eastern District of New York (225 Cadman Plaza East, Brooklyn, NY 11201)
☐ U.S. District Court — Northern District of New York (James T. Foley U.S. Courthouse, Albany, NY)
☐ U.S. District Court — Western District of New York (2 Niagara Square, Buffalo, NY 14202)
☐ New York State Supreme Court, [________________________________] County — GBL § 349 and GBL § 399-z claims
☐ New York City Civil Court — for claims within its jurisdiction

We will also file complaints with:

• New York State Attorney General — Consumer Frauds Bureau: https://ag.ny.gov/complaint
• Federal Communications Commission (FCC): https://consumercomplaints.fcc.gov/
• Federal Trade Commission (FTC): https://reportfraud.ftc.gov/
• NYC Department of Consumer and Worker Protection (DCWP): https://www.nyc.gov/dcwp (for NYC residents)

X. RESPONSE REQUIRED

Please respond in writing within thirty (30) days with:

1. The identity of your calling platform or automated dialing service provider
2. The source and acquisition date of Consumer's telephone number
3. All consent records in your possession relating to Consumer
4. Your NY AG telemarketer registration number (GBL § 399-z(3))
5. Your settlement offer

XI. CONCLUSION

Your company's violations of the TCPA and New York law — including failure to register with the New York Attorney General as a telemarketer, calls to numbers on both the National and New York Do Not Call Registries, and use of automated equipment without consent — have caused our Client significant harassment, annoyance, and invasion of privacy. The combined statutory exposure under federal and New York law is substantial.

This letter is sent without prejudice to any and all rights and remedies of Consumer under federal law, New York state law, and New York City law, all of which are expressly reserved.

Respectfully submitted,

[LAW FIRM NAME]

By: _________________________________
[ATTORNEY NAME]
New York Attorney Registration No. [________________________________]
[ADDRESS]
[CITY, NEW YORK ZIP]
[TELEPHONE]
[FAX]
[EMAIL]

Attorneys for [CONSUMER FULL NAME]

ENCLOSURES:
☐ Call/Text log — Exhibit A (dates, times, type, content)
☐ Phone records / carrier billing statement
☐ Screenshots of text messages
☐ Voicemail recordings (on USB drive or cloud link)
☐ Written revocation of consent with proof of delivery
☐ National Do-Not-Call Registry confirmation
☐ New York Do Not Call Registry confirmation
☐ Company-specific DNC request records (if applicable)
☐ Authorization to represent (client file)

cc: [CONSUMER FULL NAME]
[CLIENT FILE]
[NY AG Consumer Frauds Bureau, if complaint simultaneously filed]

NEW YORK TCPA QUICK REFERENCE TABLE

NEW YORK-SPECIFIC PRACTICE NOTES

☐ NY AG Telemarketer Registration (GBL § 399-z): Always check whether the defendant is registered with the NY AG as a telemarketer (https://ag.ny.gov/). Failure to register is an independent violation and strengthens willfulness arguments.

☐ New York Do Not Call Registry: Separate from the National DNC Registry. Check registration at https://www.donotcall.gov/ (national) and confirm NY-specific registration through AG records. Both registrations carry independent violation claims.

☐ GBL § 349 — No Reliance Required: Under Oswego Laborers, GBL § 349 only requires that the conduct be materially misleading to a reasonable consumer — individual reliance by the plaintiff is not required. This makes it significantly easier to establish than common-law fraud.

☐ GBL § 399-p (ADAD) — Underutilized: This NY-specific automated equipment statute predates the federal TCPA and is frequently overlooked. It provides an independent private right of action ($50/violation minimum) and does not require ATDS in the Facebook v. Duguid sense — any automated dialing-announcing device suffices.

☐ Attorney's Fees via GBL § 349: The federal TCPA does not expressly provide attorney's fees for private plaintiffs, but New York GBL § 349(h) does. Always plead GBL § 349 alongside federal TCPA claims in New York to secure fee-shifting.

☐ NYC CPL for NYC Residents: For clients in the five boroughs, the NYC Consumer Protection Law (NYC Admin. Code § 20-700 et seq.) provides additional damages and is enforced by DCWP, which has substantial investigative authority.

☐ CPLR Article 9 Class Actions: New York's class action rules (CPLR §§ 901–909) are similar to FRCP 23 but have some differences, including no mandatory certification timeline. CPLR § 901(b) was amended to allow class actions for statutory minimum damages. Sheresky v. Manhasset Union Free School District and related NY decisions confirm class certification is available for TCPA/GBL § 349 claims.

☐ Small Claims Option: For smaller individual claims, NYC Small Claims Court handles up to $10,000 (raised from $5,000 by 2023 legislation). Outside NYC, most courts have a $5,000 or $3,000 limit. Consult UJCA § 1801 and local court rules.

☐ NY AG Referral: The NY AG Consumer Frauds Bureau has historically pursued major telemarketing enforcement actions. Filing a consumer complaint with the AG simultaneously with sending this demand letter signals seriousness to the defendant and may trigger an AG inquiry.

SOURCES AND REFERENCES

• 47 U.S.C. § 227 (TCPA): https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title47-section227
• 47 C.F.R. § 64.1200 (FCC TCPA Regulations): https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-64/subpart-L/section-64.1200
• NY GBL § 349: https://www.nysenate.gov/legislation/laws/GBS/349
• NY GBL § 399-p: https://www.nysenate.gov/legislation/laws/GBS/399-P
• NY GBL § 399-z (Do Not Call): https://www.nysenate.gov/legislation/laws/GBS/399-Z
• NYC Admin. Code § 20-700 (NYC CPL): https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCadmin/0-0-0-55577
• NY AG Do Not Call Registry: https://ag.ny.gov/resources/businesses/telemarketing
• NY AG Consumer Frauds Bureau (complaint filing): https://ag.ny.gov/complaint
• FCC Consumer Complaints: https://consumercomplaints.fcc.gov/
• National DNC Registry: https://www.donotcall.gov/
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) — ATDS definition
• Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012) — federal court TCPA jurisdiction
• Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995) — GBL § 349 standard

This template is for informational purposes only and does not constitute legal advice. Federal and New York telemarketing law is complex and subject to ongoing regulatory and judicial development. Consult a licensed New York attorney before use.