The Telephone Consumer Protection Act (TCPA) covers unsolicited calls and texts, aimed at protecting consumers from harassing and unwanted communications. With the April 2021 Facebook SCOTUS case[1] (see GT Alert) reducing the prevalence of some TCPA claims with private rights of action, new claims are starting to emerge as plaintiffs’ favorites.

One particular provision, 47 CFR 64.1200(d), is receiving attention recently as courts increasingly allow for a private right of action if it is violated. 64.1200(d) requires the creation of procedures for maintaining an internal list of consumers who have requested not to receive messages. This internal do-not-call policy must be written, and consumer can request it at any time. If requested, it must be provided to them.

Note that this is in addition to the actual calling entity do-not-call list.

In Powers v. One Technologies, LLC, the Northern District of Texas court held that under Section 64.1200(d) the plaintiff was permitted to sue One Technologies after receiving unsolicited text messages when One Technologies lacked a procedure for maintaining a do-not-call list.[2] The court, along with two others in the Northern District of Texas, rejected the argument that because Section 64.1200(d) was promulgated under Section 227(d) of the TCPA, which does not contain a private right of action, no right of action exists.

Additionally, the Third, Sixth, and Eleventh Circuits have found that Section 64.1200(d) was promulgated to protect privacy rights under Section 227(c), rather than 227(d), of the TCPA, and the private right of action from that section carries over into Section 64.1200(d).[3]

TCPA violations can result in fines starting at $500 per call made (or text sent) without a do-not-call policy in place, and fines can reach up to $1,500 per text for certain violations.

While some thought many TCPA claims would vanish post Facebook, they appear to have taken on a new shape. Companies should consider consulting counsel experienced in TCPA compliance to ensure compliance with Section 64.1200(d).


[1] Facebook, Inc. v. Duguid, _ S. Ct. _, 2021 WL 1215717 (U.S. Apr. 1, 2021).

[2] Powers v. One Techs., Civil Action 3:21-CV-2091 (N.D. Tex. Jul. 28, 2022)

[3] Charvat v. NMP, LLC, 656 F.3d 440, 443–44, 448–49 (6th Cir. 2011); Shelton v. Fast Advance Funding, LLC, 805 F. App’x 156, 157 (3d Cir. 2020)

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Photo of Tyler Thompson Tyler Thompson

Tyler J. Thompson advises clients on data privacy and protection, technology contracts and contract processes, websites and mobile apps, digital accessibility, social media, and direct to consumer marketing. Tyler offers clients practical and efficient legal counsel, striving to manage costs and risk with

Tyler J. Thompson advises clients on data privacy and protection, technology contracts and contract processes, websites and mobile apps, digital accessibility, social media, and direct to consumer marketing. Tyler offers clients practical and efficient legal counsel, striving to manage costs and risk with business-friendly strategies.

With deep experience in digital compliance, Tyler focuses on handling all aspects of a client’s website or mobile app to pursue compliance while maintaining the best user experience. His practice also focuses on creating enforceable digital agreements with platform users, whether that platform is a website, SaaS, mobile app, or video game.

Tyler has designed and implemented privacy programs for clients from Fortune 500s to start ups, ensuring those clients are compliant with U.S. and international privacy laws. Tyler also advises on data retention and minimization, privacy by design, data inventories, and privacy impact assessments. Tyler is certified as a Fellow of Information Privacy (FIP) by the International Association of Privacy Professionals. In addition, he is a Certified Information Privacy Professional for the United States (CIPP/US), Europe (CIPP/E), Asia, (CIPP/A) and Canada (CIPP/C) as well as a Certified Information Privacy Manager (CIPM) and Certified Information Privacy Technologist (CIPP/T). Tyler is also an ISACA Certified Data Privacy Solutions Engineer (CDPSE).

In the technology space, Tyler has provided guidance on open source software, digital marketing, software licensing, and SaaS agreements. He also works with clients to modernize commercial contracting processes and privacy practices, enabling in-house attorneys to function more efficiently and conserve resources.

Photo of Madison Etherington˘ Madison Etherington˘

Madison Etherington˘ is a law clerk in Greenberg Traurig’s Intellectual Property & Technology Practice, based in the firm’s Denver office.

˘ Not admitted to the practice of law.