Understanding TCPA and Texas TBCC Violations: Key Lessons from a Recent Demand Letter Case
Understanding TCPA and Texas TBCC Violations: Key Lessons from a Recent Demand Letter Case
At Wilson Whitaker Rynell, we regularly help Texas businesses navigate the complex and overlapping requirements of the federal Telephone Consumer Protection Act (TCPA) and the newer provisions in the Texas Business & Commerce Code (TBCC). These laws create substantial risks for companies that engage in marketing texts or telephone solicitations—particularly smaller or newer businesses that rely on direct outreach.
A recent demand letter our firm handled provides a useful real-world example of how these statutes can apply. While we cannot share confidential client details, the general analysis and practical takeaways below reflect issues we commonly see in practice.
Brief Overview of Potential Liability
Based on the text messages at issue, a court could potentially find two violations of the federal TCPA, along with derivative claims under Texas law. This breaks down to:
- 2 TCPA Violations
- 2 DTPA Violations connected to TBCC Chapter 302
- 2 DTPA Violations connected to TBCC Chapter 304
Actual damages in this scenario totaled approximately $3,000. However, because both the TCPA and certain TBCC violations allow for trebling of damages upon a finding of willful misconduct, total exposure could reach as high as $9,000 (plus attorney’s fees and court costs).
In this particular matter, willful misconduct did not appear to be present, which significantly reduced the likelihood of enhanced damages. We recommended that the business consider a reasonable settlement offer of up to $3,000 to resolve the dispute efficiently. But had willful misconduct been established, the business could have faced the full $9,000 in trebled damages, dramatically increasing its financial exposure and making a favorable settlement much harder to achieve.
Ultimatley, willful or not, any settlement agreement must included a full release of all claims, a bar on future claims, and an explicit statement of no admission of liability
TCPA Basics and Application
The TCPA is a strict-liability statute designed to protect consumers from unwanted telemarketing calls and texts. Assuming the recipient’s number was properly registered on the National Do-Not-Call Registry (DNC) and no Established Business Relationship (EBR) or prior express consent existed, the first two messages sent could qualify as violations.
Key TCPA Elements for Do-Not-Call Violations:
- The plaintiff’s number is registered on the DNC.
- The plaintiff receives more than one telephone solicitation (call or text) within a 12-month period from the same entity.
- The message encourages the purchase of goods or services (qualifying as a “telephone solicitation”).
Damages: $500 per violation as the standard penalty, which can increase to $1,500 per violation if the court finds the violation was willful or knowing.
Common Defenses To TCPA:
- Prior express written consent
- Established Business Relationship (EBR) — typically based on a recent purchase or transaction within the past 18 months, or a business inquiry within the past 3 months
- The
TCPA safe harbor for companies that can demonstrate reasonable compliance
procedures (such as DNC scrubbing, internal logs, and employee training)
Messages sent in direct response to a consumer’s inquiry are generally
not considered TCPA violations.
Texas TBCC – The “Mini-TCPA”
Effective September 1, 2025, Chapters 301–305 of the Texas Business & Commerce Code created a robust state-level counterpart to the federal TCPA. Violations of several of these chapters also constitute per se violations of the Texas Deceptive Trade Practices Act (DTPA), giving consumers a private right of action.
Chapter 302 (Registration Requirements):
Requires telephone solicitors to register with the Secretary of State using Form 3401, post a $10,000 bond, and obtain a Telephone Solicitation Certificate. While there is no direct private right of action under this chapter, violations trigger DTPA claims — two potential DTPA violations here ($500 each, potentially trebled).
Chapter 304 (Texas Telemarketing Disclosure and Privacy Act):
Prohibits calls or texts to numbers on the Texas DNC list. Consumers must follow specific procedural hurdles (including filing a verified complaint within 30 days) before bringing a private action, which makes successful recovery more difficult. Violations still create per se DTPA claims. Chapters 301, 303, and 305 were not applicable or viable in this specific dispute.
Total TBCC/DTPA Exposure: Up to $6,000 in a worst-case trebled scenario, though actual recovery is often closer to the base $500 per violation when no willful conduct is shown.
Best Practices for Texas Businesses Moving Forward with TBCC
Many small and growing businesses rely on traditional door-to-door sales pitches and targeted text messages to reach prospective customers in new neighborhoods. The detailed requirements of the TCPA, combined with this relatively new Texas legislation, mean that even well-intentioned companies can face unexpected claims.
We strongly recommend that businesses implement and carefully document the following compliance measures for TCPA and TBCC:
For TCPA-Compliant Texting:
- Obtain and retain prior express written consent whenever possible
- Clearly identify the sender (actual company name) and the purpose of the message
- Include an easy, functional opt-out mechanism
- Send messages only during permissible hours: 9 a.m.–9 p.m. Monday–Saturday or 12 p.m.–9 p.m. Sunday
- Scrub all numbers against the National DNC list before sending
- Maintain detailed internal logs of compliance efforts and provide regular employee training
For TBCC Compliance:
- File Form 3401 with the Texas Secretary of State and secure the required $10,000 bond
- Purchase and scrub against the Texas DNC list before any communications
- Post the Telephone Solicitation Certificate at each business location
- Follow the same timing, identification, and opt-out rules as under the TCPA
- Train staff thoroughly on both federal and state requirements
Consistent, documented good-faith efforts can provide a strong
defense under the TCPA safe harbor
and help demonstrate
the absence of willful misconduct.
Takeaways for Business Owners
This case illustrates that even two text messages can create meaningful legal exposure under overlapping federal and state laws. The good news is that proactive compliance dramatically reduces risk, and many of these matters resolve favorably through early negotiation rather than litigation.
If your business sends marketing texts, makes outbound calls, or relies on lead generation in Texas, now is the time to review your practices. The combination of the TCPA and the new TBCC chapters has increased both the likelihood of claims and potential penalties.
What is the TCPA and how does it apply to text messages in Texas?
The federal Telephone Consumer Protection Act (TCPA) protects consumers from unwanted telemarketing calls and texts. It applies to businesses sending marketing text messages to numbers on the National Do-Not-Call Registry (DNC). Even two unsolicited marketing texts can trigger liability of $500–$1,500 per violation.
What is Texas TBCC and why is it called a “Mini-TCPA”?
Effective September 1, 2025, Chapters 301–305 of the Texas Business & Commerce Code created a state-level “Mini-TCPA.” These laws add strict registration, disclosure, and do-not-call requirements. Violations often create per se claims under the Texas Deceptive Trade Practices Act (DTPA), exposing businesses to additional $500–$1,500 penalties per violation.
How much can a business be sued for under TCPA and Texas TBCC violations?
Actual damages typically start at $500 per violation. With two qualifying messages, this often totals $3,000 in base damages. Courts may treble (triple) damages for willful violations, pushing total exposure up to $9,000 or more, plus attorney’s fees and court costs.
Do small businesses in Texas need to register for telemarketing?
Yes. Under TBCC Chapter 302, companies engaging in telephone solicitation must file Form 3401 with the Texas Secretary of State, post a $10,000 bond, and obtain a Telephone Solicitation Certificate. Failure to register can trigger DTPA claims even without a direct private right of action under the chapter.
What are the best defenses against a TCPA or TBCC demand letter?
Strong defenses include:
- Prior express written consent
- Established Business Relationship (EBR)
- Proper DNC scrubbing and documented compliance procedures
- The TCPA safe harbor for businesses that maintain reasonable compliance policies
Early review by experienced counsel often leads to favorable resolutions.
What should a Texas business do after receiving a TCPA demand letter?
Do not ignore it. Promptly consult a lawyer experienced in TCPA and TBCC matters. Many cases resolve through a reasonable settlement (often in the $2,000–$4,000 range) with a full release of claims and no admission of liability. Acting quickly prevents escalation to costly litigation.
How can Texas businesses avoid TCPA and TBCC violations?
Implement and document these key practices:
- Scrub numbers against both National and Texas DNC lists
- Obtain prior express written consent
- Include clear identification, purpose, and easy opt-out in every message
- Send texts only during legal hours
- File required Texas registration and train staff regularly
Proactive compliance is the best protection.
Need Help with TCPA or TBCC Compliance?
Wilson Whitaker Rynell regularly advises businesses on telemarketing compliance, responds to demand letters, and defends against TCPA and DTPA lawsuits. Contact us today to schedule a consultation and protect your company before issues arise.
Wilson Whitaker Rynell – Experienced Texas Business & Litigation Attorneys
Contact Us or Call 972-248-8080 for a Free Consultation!
email info@wilsonlegalgroup.com
Serving clients statewide with practical, results-oriented representation.
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