A Comparative Analysis of TCPA Damages

​The Telephone Consumer Protection Act (TCPA) provides two distinct private right of action provisions for calls and texts—Section 227(b)(3) and Section 227(c)(5)—each targeting different categories of violations and carrying different damages structures. Understanding these differences is critical for both compliance planning and litigation strategy.

TCPA Section 227(b): Autodialer, Prerecorded Voice, and Unsolicited Fax Violations

Section 227(b)(3) creates a private right of action for violations of Section 227(b)(1), which prohibits calls made using an automatic telephone dialing system (ATDS) or prerecorded or artificial voice to cell phones, emergency lines, hospital patient rooms, and similar numbers without prior express consent (or prior express written consent for telemarketing calls), and unsolicited fax advertisements.

Available TCPA 227(b) Damages: Damages available for ATDS-type violations include:

- Statutory damages: $500 per violation (i.e., per call or fax)

- Treble damages: A court may increase the award to $1,500 per violation upon a finding that the defendant willfully or knowingly violated the statute

- Injunctive relief: Courts may issue injunctions to prevent future violations

Note that §227(b) does not require plaintiffs to prove any actual harm—the statutory damages are available on a per-violation basis regardless of whether the recipient suffered economic loss

Key Implications: The $500 per-call structure is what makes TCPA class actions so devastating. A campaign sending thousands or millions of calls can quickly generate damages in the hundreds of millions. Courts have generally held that each individual call or text constitutes a separate "violation," meaning a single consumer who receives 10 unsolicited robocalls may recover $5,000 (or $15,000 if trebled).

The trebling provision for willful/knowing violations gives courts discretion but does not mandate the higher amount—plaintiffs must affirmatively prove the defendant acted with knowledge or willfulness, not merely negligence.

TCPA Section 227(c): Do-Not-Call (DNC) Violations

Section 227(c)(5) provides a private right of action for violations of regulations prescribed under Section 227(c), which primarily covers the FCC's Telephone Solicitation Rules codified at 47 C.F.R. § 64.1200. These regulations implement:

- The National Do-Not-Call Registry (numbers registered on the federal DNC list)

- Company-specific (internal) do-not-call lists (entity-specific requests not to be called)

- Caller identification and disclosure requirements

Available 227(c)(5) Damages: Available damages for DNC violations include:

- Actual monetary loss or $500 per violation, whichever is greater

- Treble damages: A court may increase the award up to $1,500 per violation** for willful or knowing violations

- Injunctive relief: Also available under this section

Unlike 227(b) violations, Section 227(c)(5) includes a standing threshold: The private right of action is only triggered when a plaintiff receives more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the DNC regulations. A single violating call, standing alone, is generally insufficient to trigger the private right of action.

Key Implications: The multiple-call requirement acts as a built-in standing filter that Section 227(b) lacks entirely. This means that a company that inadvertently calls a DNC-registered number a single time is not exposed to a private lawsuit under 227(c)(5), though it may still face FCC enforcement. However, once the threshold is crossed, each subsequent violating call is independently actionable at $500 per call.

A Critical Textual Distinction

There is a critical distinction between the statutory text of Sections 227(b) and 227(c); one that recent case law has sharpened significantly.

• Section 227(b)(3)(B) provides that a person may “receive $500 in damages for each such violation.”
  
• Section 227(c)(5)(B) provides that a person may “receive up to $500 in damages for each such violation.”

That “up to” language in 227(c)(5) is doing significant work. As the Southern District of New York held in Watson v. Manhattan Luxury Automobiles, Inc. (January 2025), Section 227(c)(5)(B)’s language is “clear that, if plaintiffs are not seeking actual damages, they may recover ‘up to’ $500 in damages,” and this “includes discretionary language that makes clear that plaintiffs may be awarded less than $500 per violation.” The court explicitly contrasted this with Section 227(b), “which states that a plaintiff may ‘receive $500 in damages for each such violation’” without discretionary language.

Under Section 227(b)(3), the prevailing view is that $500 per violation is a statutory floor, not a ceiling. Once a violation is established, the plaintiff is entitled to no less than $500 per call, text, or fax—period. Courts do not have discretion to award, say, $100 or $250 per violation under the plain text of the statute.

Multiple courts have confirmed this reading. In Wakefield v. ViSalus, Inc., the Ninth Circuit described the TCPA as setting “minimum statutory damages at $500 per call” and entered judgment on that basis for over 1.85 million violations. The trial court in that case noted that no precedent existed for reducing per-violation damages below the statutory amount under 227(b).

The only discretionary element in 227(b)(3) runs upward: the court “may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times” the $500 amount for willful or knowing violations. There is no textual mechanism to decrease below $500.

Under Section 227(c)(5) however, the damages award is discretionary within a range of $1 to $500. Courts and juries are not required to award $500—they may award any amount “up to” that ceiling. This has been confirmed by multiple federal courts:

Watson v. Manhattan Luxury Autos (S.D.N.Y. 2025): The court expressly rejected the plaintiff’s argument that “$500 per call is mandatory,” holding that the jury could award any amount up to $500 per violation at trial.

Oparaji v. Home Retention Corp. (E.D.N.Y. 2023): The court noted that plaintiffs may receive “up to” $500 per violation, implying judicial discretion over the amount.

Silva v. Seven Rock Life Corp. (E.D.N.Y. 2024): The court confirmed that “a court may award ‘up to $500’ for each violation,” treating the amount as a ceiling.

The Watson court also held that under 227(c), it is the jury—not the judge—that determines the damages amount within the statutory range, following Fourth Circuit precedent in Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019).

Practical Implications for Compliance and Litigation

Aggregate Exposure: Section 227(b) claims represent the far greater financial risk in class actions because there is no multi-call threshold, each individual call is independently actionable, and the volumes involved in autodialed or prerecorded campaigns are typically enormous. Settlements in 227(b) class actions regularly reach tens to hundreds of millions of dollars.

Willfulness and Trebling: Under both provisions, trebling is discretionary, not mandatory—the word "may" governs. Courts have applied varying standards for "willful or knowing," with some requiring actual knowledge of the TCPA's prohibitions and others finding willfulness where the defendant knew it was making the calls and should have known they were prohibited. For lead generators and their buyers, willfulness can be established where a company continues calling after receiving cease-and-desist requests or after being put on notice of DNC violations.

Interplay Between the Sections: A single calling campaign can give rise to claims under both sections simultaneously. For example, a telemarketer who uses an ATDS to call a consumer's cell phone that is also on the National DNC Registry could face liability under 227(b)(1)(A)(iii) and under the 227(c) DNC regulations. Courts have permitted stacking of damages in such scenarios, though some have found this raises due process concerns in the class action context.

State Law Overlay: Many states—including Florida, Washington, Texas, and Oklahoma—have enacted mini-TCPA statutes that provide additional or enhanced damages beyond the federal floor. Florida's FTSA, for instance, provides $500 per violation with mandatory trebling to $1,500 for willful violations (eliminating the federal statute's judicial discretion). These state statutes can create additional exposure layers on top of the federal damages structure.

The Consent Framework Distinction: The consent defense operates differently across the two sections. Under 227(b), the relevant inquiry is whether the caller had prior express consent (for informational calls) or prior express written consent (for telemarketing), which is where lead generation consent flows and the FCC's 2024 one-to-one consent rule become critically important. Under 227(c), the inquiry is whether the number was on the DNC registry and whether the caller had an established business relationship (EBR) exception or maintained compliant internal DNC procedures.

In sum, while the per-violation damages amounts are nominally identical at $500/$1,500, the practical exposure for ATDS violations under Section 227(b) is dramatically higher due to the absence of a multi-call threshold and the massive call volumes inherent in autodialed campaigns.

DNC violation claims under Section 227(c), while still significant, are somewhat tempered by the standing requirement and tend to arise in more targeted calling scenarios. Both provisions demand robust compliance infrastructure—ATDS/consent management for 227(b), and DNC scrubbing and internal list maintenance for 227(c).