Given the surge in Telephone Consumer Protection Act (“TCPA”) litigation, an advocacy firm recently petitioned the Federal Communications Commission (“FCC”) for a declaratory ruling and clarification concerning the FCC’s current TCPA rules. Below, we discuss the petition in further detail.
Petition Claims Current TCPA Rules Require FCC Action
In response to an “alarming surge in frivolous litigation exploiting the TCPA,” on March 3, 2025, the Ecommerce Innovation Alliance (“EIA”) submitted a petition to the FCC to curtail certain TCPA litigation practices. According to its petition, EIA is a nonprofit trade association that advocates for reforms to correct unintended consequences of laws and regulations. EIA’s petition asks the FCC to curb abusive TCPA-based litigation and provides, by way of example, the case of a Fort Lauderdale, Florida-based law firm (“Florida Law Firm”) that actively advertises and allegedly misleads consumers into believing that they can recover monetary damages for “illegal” text messages received during the hours of 9:00 p.m. to 8:00 a.m. (“TCPA Quiet Hours”). According to the petition, the Florida Law Firm has filed over 90 virtually identical cases since November 2024, alleging that consumers received text messages during TCPA Quiet Hours, and all of which seek to certify a nationwide class against the subject defendant.
As a result of the proliferation of these lawsuits, EIA’s petition seeks a declaratory ruling from the FCC confirming that individuals who provide prior express written consent to receive text messages cannot claim damages under the TCPA for messages received during TCPA Quiet Hours. EIA claims that granting the petition “will put attorneys on notice that claims ignoring prior written consent are frivolous and provide ample basis for a court to award sanctions against lawyers and plaintiffs who continue to proliferate baseless Quiet Hours litigation without first determining whether the potential plaintiff has provided their prior express written consent.” The obvious question that is not addressed in EIA’s petition is whether separate consent is required to call/text during TCPA Quiet Hours. To date, guidance on this issue has been neither clear nor definitive.
For purposes of complying with the FCC’s current TCPA rules, the petition also asks the FCC to clarify the issue of determining the location of a called party when solicitations are sent to a mobile phone subscriber. When the FCC first adopted the “local time at the called party’s location” language in the TCPA Quiet Hours regulations, the requested clarification was unnecessary because calls were made to landlines, and the area code of the subject phone number directly correlated to the location of the called party. Now, consumers regularly retain their mobile telephone numbers while residing in locations that do not correlate to the area code of their number. Without access to consumers’ real-time location data, EIA asserts that complying with TCPA Quiet Hours is practically impossible. Therefore, the petition asks the FCC to either: (1) waive the TCPA Quiet Hours requirement for solicitations made to mobile telephones; or (2) declare that there is a non-rebuttable presumption that the called party is located in the time zone associated with the area code of the consumers’ mobile telephone number.
TCPA Compliance Going Forward
When the FCC enacted the TCPA Quiet Hours rule, it could not have anticipated consumers’ reliance on mobile telephones as their primary form of communication. While the outcome of EIA’s petition is uncertain, the TCPA Quiet Hours rules are one of the many nuanced areas involved in TCPA statutory interpretation. In this rapidly evolving regulatory climate, it is as imperative as ever to have telemarketing practices and procedures examined by experienced counsel. The attorneys at Klein Moynihan Turco regularly: (1) advise clients on telemarketing law compliance; and (2) defend TCPA class action lawsuits.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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