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Drazen v. Pinto was supposed to simplify Telephone Consumer Protection Act interpretations. Instead, it sharpened a growing divide between federal and state courts—reshaping forum selection, damages exposure, and the compliance posture demanded of any entity deploying automated communications.
The decision in Drazen, now approaching its three-year anniversary, overruled Salcedo v. Hanna and aligned the US Court of Appeals for the 11th Circuit with every other federal appellate court. The message was clear: Receiving a single unwanted text message could constitute a concrete injury sufficient for Article III standing under the TCPA.
For federal courts nationwide, single-text standing was effectively settled. But some states have charted divergent paths. With TCPA class action filings surging 95% in 2025 over an already record-breaking 2024, the legal landscape governing who can sue, in which court, and for how much has never been more fragmented or consequential.
For example, in Pet Supermarket, Inc. v. Eldridge, Florida’s Third District Court of Appeal held that even absent Article III constraints, the state’s declaratory judgment framework requires plaintiffs to demonstrate concrete harm analogous to claim common-law injury, and a handful of promotional texts fell short.
Oklahoma’s Telephone Solicitation Act gives an aggrieved “called party”—defined as the regular user of the number receiving the call—a private remedy for injunctive relief and actual damages or $500 per violation, while Oklahoma standing doctrine still asks whether the plaintiff has suffered an actual, concrete injury to a legally protected interest.
California is more claim-dependent: although federal TCPA standing can be satisfied by the privacy and nuisance harm of an unwanted call or text, California text-advertising claims under the Business and Professions Code proceed through remedial provisions that require injury in fact and loss of money or property, while automatic-dialing/announcing-device claims under the state’s Consumer Legal Remedies Act require a consumer to have suffered “any damage.”
Class certification strategy now hinges on whether unnamed class members must independently demonstrate concrete injury—a question the original Drazen panel expressly flagged before rehearing en banc.
Standing is merely the threshold question. The real economic lever in TCPA litigation is damages, and two remediation features deserve close analysis by practitioners on both sides.
First, federal law provides $500 in statutory damages “for each such violation” of the TCPA, trebled to $1,500 for willful or knowing conduct. The law imposes no aggregate cap, meaning a campaign touching 100,000 consumers generates theoretical exposure of $50 million at baseline and $150 million at the treble rate.
While courts have applied due process constraints to reduce astronomically aggregated awards (the Eighth Circuit, for instance, approved a reduction from $1.6 billion to approximately $32 million in Golan v. FreeEats.com), the settlement pressure from uncapped per-violation exposure remains the primary driver of TCPA class action economics.
Second, distinguishing between damages assessed per violation versus per action fundamentally alters the viability calculus. Under Florida’s Consumer Collection Practices Act, for example, the weight of authority interprets the $1,000 statutory damages provision as capping recovery per action, not per communication, meaning a plaintiff alleging 50 violative calls still recovers only $1,000. Where practitioners stack analogous state-law claims alongside the federal TCPA cause of action, this per-action cap materially deflates aggregate exposure.
The result is plaintiffs are forced to either plead and prove individualized actual damages or accept recoveries insufficient to justify class prosecution costs.
The actual-damages pleading requirement is emerging as a major threshold obstacle. Because actual monetary loss must be proven individually, courts evaluating predominance increasingly conclude that classes fail when damages can’t be measured with a common methodology.
Plaintiffs unable to proffer a classwide model for calculating actual loss are driven back toward the statutory $500 per violation—and into the due process framework established by BMW of North America, Inc. v. Gore, and State Farm v. Campbell, under which courts assess whether aggregated damages awards are “grossly excessive” in relation to the harm actually caused, constraining aggregation across multimillion-member classes.
For in-house counsel and outside advisers, the compliance imperatives are concrete and apply to any entity nationwide that deploys automated communications to consumers.
Documented consent remains the threshold defense: Prior expressly written consent must be timestamped, IP-logged, and preserved in litigation-ready format with clear chain-of-custody protocols. Opt-out protocols must be honored as soon as practicable and no later than 10 business days under FCC rules that took effect April 11, 2025, although the FCC has delayed until Jan. 31, 2027, the separate requirement that would treat a revocation made in response to one informational message as applying to unrelated robocalls and robotexts from the same caller.
Counsel should confirm cross-channel revocation capabilities are fully operational. The reassigned-number database safe harbor offers narrow protection but doesn’t reach claims premised on absence of initial consent, revocation failures, or time-of-day violations.
Finally, litigation readiness now demands that organizations understand a simple proposition: A single marketing text to a single consumer now constitutes a concrete federal injury and, depending on the forum, may or may not satisfy state law standing requirements, as illustrated by the divergent outcomes in the Eleventh Circuit and Florida state courts.
The best course is to treat every automated communication as a potential liability, designing systems that contemporaneously document consent, execute revocation, and generate the record of evidence needed to prevail at summary judgment.
This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Samantha Duke is a partner at RumbergerKirk who represents corporate clients and handles matters involving the Telephone Consumer Protection Act and Medicare Secondary Payer Act.
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