You likely know (or detected) the TCPA is soooooo much more important to the average company than the TSR.

But why is that?

The TSR is longer. Much more detailed and specific and covers far more topics. Plus it is enforced by the very aggressive FTC, unlike the relatively thoughtful FCC that generally only enforces the TCPA against the real bad guys. So one would think it would have a much larger impact on regular businesses than the relatively spartan TCPA.

Yet everyone knows the TCPA and few know the TSR. (And its not just because I run TCPAWorld and not TSRWorld…hahaha).

The reason, of course, is that there is no private right of action under the TSR and there is under the TCPA.

Under the TCPA you can sue and recover automatic statutory damages of $500.00 per violation. Under the TSR you can ONLY sue if you can demonstrate $50,000.00 in ACTUAL damages. Sure that could happen in a true fraud situation, but not under any other circumstance.

Take Betts v. Great Resorts Vacation, 2024 WL 3797399 (D. Utah July 29, 2024) for example. There the Plaintiff alleged receipt of a bunch of unwanted marketing calls made to her without consent. Plaintiff sued under the TCPA and TSR.

While the claims certainly asserted a violation of TSR provisions the court dismissed the claim. Why? Because no damages exceeding $50k:

The court agrees with Defendant that Plaintiff has failed to allege sufficient actual damages to sustain a TSR claim. Upon review of the Complaint, Plaintiff claims only statutory and punitive damages per phone call (ECF 1 at 8), which cannot satisfy the damages requirement for a TSR claim. See Shostack, 2016 WL 958687, at *6 (adopting recommendation of dismissal of TSR claim as the plaintiff “only claims statutory and punitive damages, which do not count toward the $50,000 requirement, and fails to allege any actual damages”).

Claim dismissed.

Now the TSR remains important, of course, and with last year’s telemarketing sweep by the FTC (and new recordkeeping rules) folks really need to be paying attention to the rule. But the TCPA will always remain the far more dangerous statute given the abusive nature of litigation (that continues to spike) and class actions that can be brought even against small businsses.

Speak of which, did you hear about the small business that fought back against the powerful TCPA shark Avi Kaufman and won?

Learn all about it.