Our readers may recall a recent piece in which we discussed a petition seeking clarity from the Federal Communications Commission (“FCC”) about the Telephone Consumer Protection Act’s (“TCPA”) applicability to calls made late at night and early in the morning. This uptick in TCPA quiet time litigation is spearheaded by a Fort Lauderdale, Florida-based law firm that actively solicits consumers to file TCPA time-specific lawsuits in which consumers allege that they received telephone solicitations during the hours of 9:00 p.m. to 8:00 a.m. (“TCPA Quiet Time”). Below, we discuss: (1) the rise in TCPA Quiet Time litigation; (2) the law firm responsible for the majority of these lawsuits; and (3) the implications of these types of TCPA lawsuits.
Does The TCPA’s Quiet Time Regulation Require Specific Consent?
The TCPA Quiet Time regulation limits initiating any telephone solicitation to: (1) “[a]ny residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).” In an effort to curtail the filing of these lawsuits, the petition seeks, among other things, 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/calls received during TCPA Quiet Time. As the primary party responsible for the recent spike in the filing of TCPA Quiet Time lawsuits, The Law Offices of Jibrael S. Hindi, PLLC (“Jibrael Law”) opposes the petition. In its opposition, Jibrael Law argues, among other things, that the focus should be on the scope of consent and that consumers’ general consent to receive calls or text messages does not mean that they consent to receive text messages/calls during TCPA Quiet Time. Rather, Jibrael Law argues that consumers must provide specific consent to receive text messages/calls during TCPA Quiet Time, and that the issue of whether general consent to receive text messages/calls during off-hours violates the TCPA should be decided by the judiciary, not the FCC.
It should be noted that the TCPA’s hours-related prohibition applies to “telephone solicitations”; however, as that term is defined in the TCPA’s implementing regulations, calls/texts made with consumers’ prior express invitation or permission are not considered telephone solicitations.
TCPA Quiet Time Regulation Isn’t So Clear
The FCC is unlikely to issue a declaratory ruling that calls/texts made during off-hours do not violate the TCPA, and it is more likely that it will issue guidance instead. Whether separate consent is required to call/text during this time period is not clear, and companies are wise to avoid making telemarketing calls/texts during TCPA Quiet Time. The TCPA Quiet Time regulation is one of the many nuanced areas within the TCPA’s regulatory framework. Readers of this blog know that the plaintiffs’ bar is constantly finding new avenues for pursuing litigation under this lucrative statute. As such, it is imperative to regularly update telemarketing practices and procedures and to have them examined by experienced counsel. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on telemarketing law compliance; and (2) defend companies against 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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FCC’s TCPA Consent Revocation Rule Effective April 11, 2025!
