The marketing rules that name a private plaintiff

The short answer

The federal statute restricting the use of telephone equipment contains three enforcement provisions that name someone other than a federal agency.

One is written for a person or entity and attaches to the automated-call and fax restrictions. A second is written for a person who has received more than one telephone call within any twelve-month period from the same entity, and attaches to the solicitation and do-not-call regulations. The third is written for a state attorney general or a state-designated official or agency.

A separate statute, in the telemarketing chapter, gives a state attorney general a parens patriae action on behalf of state residents for a pattern or practice of telemarketing violating the Commission's telemarketing rules.

That combination is unusual. Many consumer rules name a government plaintiff and no one else. These two statutes name an individual and a state, and they say what each may seek.

The automated-call provision

The first of the three is drafted with a jurisdictional condition on its face. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State one of three things.

An action based on a violation of that subsection or the regulations prescribed under it, to enjoin the violation. An action to recover for actual monetary loss from such a violation, or to receive five hundred dollars in damages for each such violation, whichever is greater. Or both such actions.

The statute then adds a discretionary multiplier. If the court finds that the defendant willfully or knowingly violated the subsection or the regulations prescribed under it, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount otherwise available.

Two features are easy to misread. The five hundred dollar figure is a statutory alternative to actual monetary loss, whichever is greater, rather than an amount attached to every complaint. And the multiplier is discretionary and conditioned on a finding about the defendant's state of mind.

The same subsection also provides for civil forfeiture determined by the Commission, which is a separate track from the private one and runs to the United States rather than to any individual.

The do-not-call provision, and the defense written into it

The second provision has a different trigger and carries something the first does not.

It applies to a person who has received more than one telephone call within any twelve-month period by or on behalf of the same entity in violation of the regulations prescribed under that subsection. That person may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State an action to enjoin the violation, an action to recover actual monetary loss or to receive up to five hundred dollars in damages for each violation, whichever is greater, or both.

The threshold is more than one call in a twelve-month period from or on behalf of the same entity. A single call is not what this provision describes.

And then the sentence that distinguishes this provision from the first: it shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under that subsection.

That defense is the reason a company's internal do-not-call procedures are not merely paperwork. The statute makes their existence and their implementation a defense written into the provision itself.

The same discretionary treble language appears here, on the same condition of a finding that the defendant willfully or knowingly violated the regulations. The subsection also states that it shall not be construed to permit a communication prohibited by the automated-call subsection.

What a state may do under the telephone statute

The third provision is written for a state and has its own trigger.

Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of telephone calls or other transmissions to residents of that State in violation of the section or the regulations prescribed under it, the State may bring a civil action on behalf of its residents.

It may seek to enjoin such calls, to recover actual monetary loss or receive five hundred dollars in damages for each violation, or both. The same discretionary increase to not more than three times applies on a finding of a willful or knowing violation.

The trigger is a pattern or practice, not a single incident, and the standard is reason to believe.

The statute assigns exclusive jurisdiction over civil actions under that subsection to the federal district courts and named territorial courts, and provides that on a proper showing a permanent or temporary injunction or restraining order shall be granted without bond.

It also requires the State to serve prior written notice of the action on the Commission and provide a copy of its complaint, except where prior notice is not feasible, in which case notice must be served immediately on instituting the action. The Commission then has the right to intervene, to be heard on all matters arising in the action, and to file petitions for appeal.

The parallel provision in the telemarketing statute

A separate statute, in the chapter on telemarketing and consumer fraud and abuse prevention, sets up a similar but distinct state action.

Whenever an attorney general of any State has reason to believe that the interests of the residents of that State have been or are being threatened or adversely affected because any person has engaged or is engaging in a pattern or practice of telemarketing which violates any rule of the Commission under the named section, the State, as parens patriae, may bring a civil action on behalf of its residents in an appropriate federal district court.

What it may seek is broader than an injunction. The statute names enjoining the telemarketing, enforcing compliance with the rule, obtaining damages, restitution, or other compensation on behalf of residents of the State, and obtaining such further and other relief as the court may deem appropriate.

The same prior-notice-to-the-Commission structure applies, with the same intervention and appeal rights.

The statute contains a first-to-file provision running the other way. Where a civil action has been instituted by or on behalf of the Commission or the Bureau of Consumer Financial Protection for violation of a rule under the named section, no State may, during the pendency of that action, institute an action against any defendant named in that complaint for violation of any rule as alleged in it.

Two construction clauses close it out. Nothing in the chapter prevents an attorney general from exercising powers conferred by state law to conduct investigations, administer oaths or affirmations, or compel the attendance of witnesses and the production of evidence. And nothing in the section prohibits an authorized state official from proceeding in state court on the basis of an alleged violation of any civil or criminal statute of that state. In addition to actions by an attorney general, such an action may be brought by officers of the State authorized to bring actions on behalf of its residents.

What these provisions do and do not settle

Read together they describe a structure rather than an outcome. Both statutes name who may act, on what trigger, in what forum, and what may be sought.

What neither statute does is decide any individual matter. The private provisions are both conditioned on being otherwise permitted by the laws or rules of court of a State, the do-not-call provision carries an affirmative defense written into it, and the treble language is discretionary and conditioned on a finding about the defendant.

Nothing in this article tells any reader that they have a claim, that a claim would succeed, or what any court has done. No enforcement action, court decision or outcome was researched for this article, and none is described.

What is useful to carry away is the shape. A rule that names only a federal agency and a rule that names an individual and a state are different instruments, and the difference is visible in the enforcement section rather than in the prohibition. Reading the enforcement section is how the difference is found.

It is also worth noting where the private provisions sit. Both are attached to the telephone statute. The telemarketing statute's corresponding section is titled Actions by States and names a state attorney general and state officers, not an individual.

Sources

Each document below is named as it names itself, with the date printed on that document rather than the day it was read.

1. United States Code Title 47, Section 227, Restrictions on use of telephone equipment — read at subsection (b)(3) for the private right of action, the five hundred dollar alternative and the discretionary treble provision; (b)(4) for civil forfeiture; (c)(5) for the private right of action requiring more than one call in a twelve-month period and its affirmative defense; (c)(6) for the relation to subsection (b); and (g)(1) through (g)(4) for Actions by States, exclusive federal jurisdiction, notice to the Commission and venue — Office of the Law Revision Counsel, U.S. House of Representatives, September 2026
2. United States Code Title 15, Section 6103, Actions by States — read in full for the parens patriae action on a pattern or practice of telemarketing, the relief it names, the notice and intervention provisions, the bar on a State action against a defendant named in a pending Commission or Bureau complaint, venue and service, and the two construction clauses preserving state investigative powers and state court proceedings — Office of the Law Revision Counsel, U.S. House of Representatives, September 2026