Advertising Law Blog

Litigation under the Telephone Consumer Protection Act (“TCPA”) is experiencing a notable shift, with an increasing number of class action lawsuits targeting businesses for sending marketing text messages outside of federally mandated "quiet hours." These quiet-hour restrictions—outlined in 47 C.F.R. §64.1200(c)(1)—prohibit marketing calls or texts before 8:00 a.m. and after 9:00 p.m. local time. Complicating things even further, several states have different time-of-day or day-of-week restrictions different from the federal TCPA.

In recent months plaintiffs have increasingly filed suits over deviations from this time window, claiming that any marketing text sent later or earlier entitles them to $500 per message under the TCPA’s statutory damages provision. The red line of the time window makes these suits hard enough to defend, but another plaintiff’s strategy makes this trend even more concerning. Many of these lawsuits are filed even though the plaintiffs previously provided the text-sending businesses with prior express written consent to send them text messages. In other lawsuits, the businesses were simply responding to requests for information from the plaintiffs, hence the “gotcha” nature of these lawsuits. This trend raises an important, and so far unanswered legal question: do the quiet-hour restrictions apply despite prior consent to receive the messages?

While plaintiffs argue that any message sent outside the designated hours constitutes a violation, defendants counter that consent should override these restrictions, as consented communications fall outside the definition of “telephone solicitations” under the TCPA. This issue is further complicated by challenges around determining the recipient’s local time zone, especially in an era of mobile numbers that often cross time zones. Should the time be determined by the mobile number’s area code or by the time zone in which the recipient happens to be located at the time the text is sent?

In response to this surge in litigation, the Ecommerce Innovation Alliance has filed a petition with the FCC, seeking clarification on whether prior express consent should exempt businesses from the quiet-hour restrictions. The petition also requests guidance on how to handle time zone issues for mobile recipients. There is no definite timeframe in which the FCC is required to render a ruling on the petition, so it can be expected that these lawsuits will continue to proliferate.

High-profile cases have been filed against Dave & Buster’s, Steve Madden and Disney. They highlight the financial risks businesses face, with potential penalties of $500 per text (or even $1,500 per text if done deliberately). The risk becomes exponentially greater when cases are brought as class actions. The frequency of these lawsuits has been amplified by aggressive litigation strategies, including social media campaigns with plaintiff-recruiting pitches promising financial compensation for violations.

Until the FCC provides clear guidance, businesses engaged in text message marketing should adopt proactive compliance measures. Businesses can mitigate their exposure by adhering to the most restrictive state regulations, ensuring clear documentation of consent and carefully monitoring the timing of their marketing campaigns.