Negotiating the number: what moves a TCPA demand and what does not

The number in a TCPA demand letter is negotiable. It was set by arithmetic, and arithmetic is where it moves. The sender took the documented calls, multiplied by the statutory range of $500 to $1,500 per call, added the Florida figure under Fla. Stat. § 501.059 where it applied, and discounted to a figure they expected to settle at. A counter that changes an input to that calculation gets taken seriously. A counter that just says "too high" does not.

What the sender's arithmetic looks like

Inputs that move the number down

• Fewer calls. Any listed call you can show was not yours, was more than four years old, or went to a number with written consent comes off the count. This is the biggest lever and the only purely evidential one.
• Willfulness. If you can show a compliance process that failed in a specific way (a scrub that ran against a stale list, a vendor that misrepresented consent), the willful multiplier looks weaker. Keep the documents.
• Single-call do-not-call numbers. A do-not-call claim under 47 U.S.C. § 227(c) needs more than one call to the number within twelve months. Numbers with a single call do not carry that count.
• Speed and certainty. A payment this week is worth more to the sender than a promise. Offer a short payment date with the counter.
• Structure. A smaller lump sum now, or a larger total over instalments, are both tradeable.

Things that do not move it

• Being a small business. The statute does not scale damages to the size of the caller.
• Having stopped calling. That prevents new claims. It does not reduce the existing ones.
• Threatening to report the sender, hire a lawyer, or go to the press. None of these change the call count.
• The vendor's fault. The seller is liable for calls made on its behalf. Pursue the vendor separately.
• Silence. Not replying is not a negotiating tactic. It moves the matter toward referral.

How to make a counter

1. Reconcile first. Do the number-by-number check before you write anything. Your counter is only as good as the reconciliation behind it.
2. One figure, one reason. "We can resolve this at $X on the basis that numbers 4, 7 and 11 are outside the limitations period and number 9 has the attached consent record." Not a range. Not a list of grievances.
3. Attach the evidence. A counter with documents attached is a different letter from a counter without them.
4. Name the terms. Payment date, method, and that you expect a written release with no admission.
5. Ask for the extension in the same letter. Negotiation takes a round or two. Get the deadline moved in writing so the clock does not run out mid-conversation.
6. Expect one round back. If the sender's reply addresses your evidence and adjusts, you are close. If it ignores the evidence, you have learned something about who you are dealing with.

When the counter should be zero

If your reconciliation shows every listed call is out of time, consented or not yours, do not counter. Dispute. A counter concedes that something is owed.