Defending TCPA Lawsuits in the Northern District of Texas: Claims, Defenses & Damages
A company sued under the Telephone Consumer Protection Act in the Northern District of Texas (NDTX) may face claims involving automated calls, artificial or prerecorded voices, unwanted text messages, Do-Not-Call Registry violations, or several theories pleaded together. For in-house counsel and national litigation counsel, one of the first defense tasks is determining exactly which TCPA provisions the plaintiff invokes because Section 227(b) and Section 227(c)(5) regulate different conduct, require different showings, and can present materially different defenses.
That distinction has become even more important as courts reconsider whether text messages qualify as “telephone calls” for purposes of the private Do-Not-Call cause of action under Section 227(c)(5). At the same time, NDTX decisions illustrate recurring defense issues involving consent, residential status, class certification, vendor relationships, statutory damages, and parallel Texas-law claims.
This article provides a defense-oriented framework for companies and counsel confronting TCPA litigation in the Northern District of Texas. It is not a substitute for analyzing the particular complaint, communications, technology, consent history, vendor relationships, and assigned judge. For a deeper step-by-step treatment, see How Should a Company Defend a TCPA Lawsuit in the Northern District of Texas?
The first defense question is often not whether the company made the communication. It is which TCPA provision the plaintiff says the communication violated.
Understanding the TCPA Claims Asserted Against the Company
The TCPA, codified principally at 47 U.S.C. § 227, regulates several forms of telephone and electronic communications. In litigation involving calls or texts to consumers, two provisions frequently matter: Section 227(b), which regulates specified technologies and practices, and Section 227(c), which protects residential subscribers from certain unwanted telephone solicitations and supports the National Do Not Call Registry.
Those provisions overlap in some cases, but they are not interchangeable. A plaintiff may allege that a communication violated Section 227(b) because it used an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice without the required consent. The same plaintiff may separately allege a Do-Not-Call violation under Section 227(c)(5) based on repeated telephone solicitations made in violation of FCC regulations.
For the defense, that means the complaint should be separated claim by claim. The relevant questions can differ depending on whether the theory concerns the technology used, an artificial or prerecorded voice, consent, the character of the communication as a solicitation, the number and timing of communications, the status of the called number, or the relationship between the defendant and a third-party marketer.
| Issue | Section 227(b) | Section 227(c)(5) |
|---|---|---|
| Primary focus | Specified calling technology and practices | Privacy and telephone-solicitation practices |
| ATDS required? | Only for an ATDS theory; artificial/prerecorded voice is separate | No ATDS showing required merely for a DNC theory |
| Number of communications | A single actionable violation can potentially suffice | More than one telephone call within 12 months by/on behalf of same entity |
| DNC status | Not a core ATDS/prerecorded-voice element | Often central |
| Texts | Potentially actionable under Section 227(b), subject to the actual theory | Developing issue after the Seventh Circuit’s 2026 Steidinger decision |
Section 227(b): Defending Robocall and Automated-Technology Claims
Many private TCPA cases involving cell phones focus on calls or texts allegedly made using an automatic telephone dialing system (ATDS), or using an artificial or prerecorded voice, without the required consent. The defense should identify the precise statutory theory instead of treating every automated communication as an “autodialer” claim.
Was an ATDS Actually Used?
In Facebook, Inc. v. Duguid, the Supreme Court narrowed the statutory definition of an automatic telephone dialing system. To qualify as an ATDS under the definition addressed there, equipment must use a random or sequential number generator to store or produce telephone numbers to be called. The fact that software can automatically send communications from a stored customer or lead list does not, by itself, answer the ATDS question.
That makes the actual platform and its functionality important evidence. Early defense work may include identifying the dialer or messaging system, preserving configuration information, understanding how numbers entered the system, and separating the technology actually used from generic allegations in the complaint.
Was an Artificial or Prerecorded Voice Used?
Duguid did not eliminate TCPA exposure involving artificial or prerecorded voices. Section 227(b) separately regulates certain calls made using an artificial or prerecorded voice, so defeating an ATDS allegation does not necessarily dispose of every Section 227(b) theory.
Counsel should determine whether the communication involved a live agent, prerecorded message, artificial voice, interactive voice system, voicemail technology, or some combination.
Did the Plaintiff Consent?
Consent can be one of the most important merits and class issues in TCPA litigation. Relevant evidence may include website forms, account-opening documents, purchase records, lead-generation forms, inbound calls, prior business interactions, terms and conditions, opt-in records, and later communications. For a focused answer on consent, see Can Consent Be a Defense to a TCPA Lawsuit?
Revocation should be analyzed separately. If the plaintiff contends consent was withdrawn, the defense should determine what was communicated, when it was received, whether the asserted revocation was effective under the applicable rules, and what happened afterward.
Who Actually Made the Call or Text?
Lead generators, marketing agencies, call centers, franchisees, vendors, affiliates, and other third parties may be involved in communications associated with a company’s brand.
That makes direct and vicarious liability important. Courts analyze agency principles such as actual authority, apparent authority, and ratification. NDTX authority has rejected the notion that an agency relationship can be inferred merely because telemarketing allegedly benefited or was performed on behalf of a company.
Vendor contracts should be reviewed for TCPA compliance obligations, insurance, indemnification, defense obligations, audit rights, control provisions, and responsibility for consent records.
Section 227(c)(5): Defending Do-Not-Call Claims
Section 227(c) addresses privacy protections surrounding telephone solicitations and led to the National Do Not Call Registry. Section 227(c)(5) creates a private right of action for a person who has received more than one telephone call within a 12-month period by or on behalf of the same entity in violation of regulations prescribed under subsection (c).
That is a different theory from an ATDS claim. A Do-Not-Call plaintiff does not establish liability merely by showing that a communication was automated. The defense should analyze the number and timing of contacts, whether the communication was a telephone solicitation, the status and use of the called number, applicable permissions or exceptions, and the particular FCC regulation allegedly violated.
Section 227(b) and Section 227(c)(5) should not be treated as interchangeable TCPA claims.
Were There More Than One Telephone Call Within 12 Months?
The statutory private right of action under Section 227(c)(5) requires more than one telephone call within a 12-month period by or on behalf of the same entity. That makes the communication history a threshold issue.
Counsel should build a reliable chronology from call records, text logs, CRM data, vendor records, opt-out records, and the plaintiff’s allegations. Communications by different vendors or entities may also require analysis of whether they were made “by or on behalf of” the same entity.
Was the Number Protected by the Do-Not-Call Rules?
Do-Not-Call litigation can raise questions about whether the plaintiff is within the class of persons protected by the regulation and whether the number was residential or otherwise eligible for the protection asserted. The answer may depend on the regulation invoked and the actual use of the number.
This issue can become especially important in class litigation. In Hirsch v. USHealth Advisors, an NDTX court identified individualized questions concerning residential status, along with consent, as obstacles to class certification. The practical defense lesson is to investigate the status and use of numbers rather than assume every number in a proposed class is similarly situated.
Was the Communication a Telephone Solicitation?
Do-Not-Call protections are directed at telephone solicitations, not every communication a company makes. The TCPA defines “telephone solicitation” by reference to communications encouraging the purchase or rental of, or investment in, property, goods, or services, subject to statutory and regulatory qualifications and exceptions.
The defense should identify why the communication was sent. Customer-service, informational, transactional, debt-related, requested, or relationship-based communications may present different issues from cold marketing solicitations. The content, purpose, prior relationship, and source of the lead can all matter.
Did the Defendant Maintain Reasonable Compliance Procedures?
Section 227(c)(5) also recognizes a defense where the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations that violate the applicable regulations.
For an enterprise defendant, this makes the compliance system relevant evidence. Written policies alone may not be enough. Counsel should investigate suppression-list processes, DNC scrubbing, vendor instructions, training, auditing, opt-out handling, escalation procedures, record retention, and whether the procedures were actually followed in the campaign at issue.
Are Text Messages “Calls” Under the TCPA?
Text messages require separate analysis because the statutory language differs across TCPA provisions. Courts, including the Fifth Circuit in cases involving Section 227(b), have long treated unwanted text messages as possibly capable of supporting TCPA claims. The Supreme Court in Facebook v. Duguid addressed an ATDS dispute involving text messages while noting that the parties did not contest whether the relevant Section 227(b) prohibition extended to texts. For the developing Section 227(c)(5) issue, see Do Texts Count as Calls Under TCPA Section 227(c)(5)?
The Section 227(c)(5) question is now more unsettled. In 2024, the Northern District of Texas in Busbee v. ServiceToday! treated text messages as “telephone calls” for purposes of a Do-Not-Call claim, relying on Fifth Circuit authority concerning text messages under the TCPA. Busbee, however, was a default-judgment proceeding and preceded a significant 2026 appellate development.
In July 2026, the Seventh Circuit held in Steidinger v. Blackstone Medical Services that Section 227(c)(5)’s reference to “telephone calls” does not include text messages. The court distinguished Section 227(c)(5) from other TCPA provisions, including Section 227(b), and concluded that the private Do-Not-Call cause of action is textually narrower.
Steidinger is not controlling Fifth Circuit authority. But for an NDTX defendant facing a Section 227(c)(5) claim based on texts, it creates a current statutory argument that deserves careful evaluation. Defense counsel should identify the subsection invoked rather than assume that cases treating texts as calls under Section 227(b) automatically resolve the separate Section 227(c)(5) question.
Key Defenses to TCPA Lawsuits
No single defense applies to every TCPA case. The strongest defense usually depends on the statutory theory, communication technology, consent history, purpose of the communication, and who actually initiated it. For a focused answer on the principal defense categories, see What Are the Main Defenses to a TCPA Lawsuit?
Potential defenses and threshold issues can include whether an ATDS within the post-Duguid definition was used; whether an artificial or prerecorded voice was involved; prior express consent; the timing and effectiveness of revocation; whether the communication was a telephone solicitation; whether the plaintiff received the required number of communications; whether the number and subscriber fall within the DNC protection asserted; reasonable compliance procedures; lack of direct liability; lack of an agency basis for vicarious liability; standing; limitations; and defenses to class certification.
Enterprise defendants should also investigate contractual defenses and risk transfer. A marketing vendor, lead generator, platform provider, franchisee, or other third party may have assumed TCPA compliance, indemnification, insurance, or defense obligations.
Individual TCPA Claims Versus Class Actions
The economics of a TCPA case can change dramatically when a plaintiff seeks to represent a class. Statutory damages that appear manageable for a handful of communications can become significant when multiplied across a large campaign or customer population. For the narrower Rule 23 issue, see Can Consent Issues Defeat TCPA Class Certification?
Class certification, however, is not automatic. Consent can create individualized issues because class members may have entered the defendant’s system through different channels and at different times. Residential status, prior relationships, opt-outs, vendor sources, and the nature of particular communications can create additional differences.
NDTX decisions provide useful examples. In Hirsch v. USHealth Advisors, the court denied certification where consent and residential-status questions could not be resolved through common proof. More recently, in Mitchell v. Toyota of Dallas, the court denied certification in 2025 because individualized consent issues would predominate and the proposed class lacked sufficient cohesiveness. Those decisions do not dictate the outcome of every TCPA class case, but they illustrate why consent data and lead-source evidence should be preserved at the beginning rather than reconstructed after class discovery begins.
In a putative TCPA class action, consent may be more than a merits defense—it can become a class-certification issue.
TCPA Damages and Potential Exposure
TCPA damages are statutory, which is one reason even relatively simple communications can create material litigation exposure. Under Section 227(b)(3), a successful plaintiff may seek actual monetary loss or $500 for each violation, whichever is greater. If the court finds a willful or knowing violation, it may increase the award to as much as three times the otherwise available amount. For a concise damages answer, see What Damages Can a Plaintiff Recover Under the TCPA?
Section 227(c)(5) similarly permits recovery of actual monetary loss or up to $500 for each violation, with discretionary trebling for willful or knowing violations. The precise damages analysis should follow the claims actually established and the communications at issue.
Busbee illustrates the arithmetic. The NDTX entered a default judgment based on repeated text messages and awarded damages under TCPA and Texas-law theories, while also addressing limits on duplicative recovery. A defended case can present very different factual and legal issues, but the decision shows why companies should evaluate both the number of alleged violations and the plaintiff’s theory for enhanced damages early.
Willfulness should not be assumed merely because communications occurred. The defense should examine knowledge, consent records, opt-out handling, vendor conduct, compliance procedures, and what the defendant knew at the relevant time.
Related Texas-Law Claims
A TCPA complaint filed in the Northern District of Texas may include more than federal claims. Plaintiffs sometimes add claims under Texas Business & Commerce Code provisions governing telephone solicitations or creating remedies tied to TCPA violations.
That makes a claim-by-claim damages analysis important. In Busbee, the court considered federal TCPA claims together with Texas statutory claims and concluded that the plaintiff could not obtain duplicative recovery for the same TCPA violations under one of the Texas provisions.
Texas claims may also raise separate registration, territorial, remedy, and attorney-fee issues. In-house counsel and national defense counsel should therefore avoid treating the state-law counts as boilerplate appendices to the federal TCPA claims.
Defending TCPA Cases in the Northern District of Texas
For a company already sued in NDTX, the immediate defense work should be practical. Preserve the communications, call and text logs, consent and opt-out records, campaign data, vendor agreements, platform information, and internal compliance materials. Identify the statutory counts separately. Determine which entity or vendor initiated the communications. Evaluate Rule 12 issues, jurisdiction, standing, limitations, agency allegations, and any related Texas claims before the case moves into expensive discovery. See also Business Litigation and Northern District of Texas Local Counsel resources.
Class exposure should be considered at the same time. The data architecture that can prove consent, lead source, residential status, opt-outs, and campaign differences may ultimately matter as much to Rule 23 as it does to individual liability.
National TCPA counsel may already have deep substantive experience and simply need counsel familiar with the Northern District of Texas. Depending on the case, Texas counsel can serve as local counsel, co-counsel, lead defense counsel, or a litigation joint-venture partner while coordinating with the company’s existing national team. The right structure should depend on the needs of the client and the case—not on forcing a particular division of responsibility.
NDTX practice also requires attention to the assigned judge’s procedures, local rules, admission requirements, scheduling practices, and the way the particular court handles dispositive motions, discovery, and class issues. Local knowledge does not replace TCPA expertise, but in a federal statutory case with meaningful class and damages exposure, the two can complement each other.
Takeaways
Identify the TCPA theory before choosing the defense. Section 227(b) and Section 227(c)(5) regulate different conduct and should be analyzed separately.
Investigate the technology, not the label. After Duguid, an allegation that a platform automated communications does not by itself establish that an ATDS was used.
Treat consent and vendor evidence as early priorities. Those records can affect merits, agency, indemnification, and class certification.
Analyze text-message claims by statutory subsection. The 2026 Steidinger decision creates a significant developing argument under Section 227(c)(5), but it is not controlling Fifth Circuit authority.
Evaluate class exposure from day one. NDTX decisions show that individualized consent and residential-status issues can be important to certification.
Do not ignore Texas-law counts or local procedure. An NDTX TCPA case may require coordinated federal, Texas, and local-court strategy.
Research TCPA Defense Deeper
In-Depth Guide: How Should a Company Defend a TCPA Lawsuit in the Northern District of Texas?
Related FAQs:
Related Practice Areas: Business Litigation; Local Counsel
Related Services: Northern District of Texas Local Counsel; Texas Local Counsel
Related Industries: Telecommunications; Technology
About the Firm
Klemchuk is a litigation-led, full-service intellectual property firm serving sophisticated businesses, entrepreneurs, and investors. We combine deep IP experience with practical business judgment, senior-level relationships, and a willingness to litigate when the stakes require it.
This article is provided for informational purposes only and does not constitute legal advice. The appropriate legal strategies depend on the facts and applicable law. The law evolves and this article likely will not be edited to reflect any changes in the law. The laws between jurisdictions also conflict. This article may contain mistakes. For all these reasons, you should hire a competent attorney to provide legal advice and you should not rely upon this article for any reason.
© 2026 Klemchuk PLLC | Explore Our Services