Do You Need to Stop Sending Texts at Night/Early Morning?
by: Brian C. Schaller and Larisa Kupinszky Gamberg
Any business that sends texts should pay attention to recent movement on the Telephone Consumer Protection Act’s (TCPA) “Quiet Hours” provision. Plaintiffs are now filing lawsuits claiming that marketing text messages sent outside the hours of 8:00 a.m. to 9:00 p.m. are a violation of the TCPA, even if the text recipient gave prior general consent to receive such texts. In addition, prompted by these types of claims, the Ecommerce Innovation Alliance (EIA) asked the Federal Communications Commission (FCC) to issue a declaratory ruling to clarify this very issue.
In this article, we analyze a couple of these cases, the EIA petition for a declaratory ruling (“Petition”) and the FCC’s request for public comment, as well as key takeaways on what this means for your business.
Example Cases
There is evidence that many dozens of Quiet Hour cases have already been filed in federal courts. Prominent cases in this new wave of TCPA litigation include Toscano v. Grenades, LLC, No. 2:25-CV-02049 (C.D. Cal. Mar. 7, 2025) and Vallejo v. R.J. Reynolds Tobacco Company, No. 8:25-cv-0046 (C.D. Cal. Mar. 11, 2025).
The argument in these two suits is novel and seems to imply that a company must obtain specific consent to send marketing text messages to a customer before 8:00 a.m. or after 9:00 p.m. local time, even if a customer has already given their general prior express written consent to receive marketing texts. This interpretation is novel, untested, and it is not clear whether the plaintiffs’ interpretation will ultimately be successful. We have seen the plaintiffs’ bar pushing novel theories before, particularly after the Supreme Court’s 2021 decision in Facebook, Inc. v. Duguid narrowing the definition of “autodialer” was considered a win for defendants. The seminal TCPA case caused the plaintiffs’ bar to become more creative with their legal theories in TCPA cases (which are particularly attractive for class actions because of the $500-$1,500 in statutory damages).
Request for Declaratory Ruling
It is common for industry groups to petition the FCC for declaratory rulings to help stave off litigation on a particular issue, and, here, this is what is happening. The EIA describes itself as a nonprofit trade association that “brings the ecommerce industry together to advocate for common sense policies that strengthen the ecommerce ecosystem while protecting consumer privacy.”
In their Petition for a declaratory ruling, the EIA asks for the FCC for three things:
Confirmation that those who provide prior express written consent to receive texts cannot claim damages under the TCPA for messages received during the Quiet Hours.
Clarification or waiver of the Quiet Hours rule (47 C.F.R. § 64.1200(c)(1)). Here, the EIA is arguing that “the impossibility of compliance” (e.g. the fact that senders can’t access real time location data, and cannot know where the texted party is located in order to determine what a texted party’s “local time” is) “combined with harsh penalties for non-compliance” ($500 to $1,500 in statutory damages) “warrant a waiver of the Commission’s rule.”
In the alternative, a waiver or clarification that reliance on the NPA-NXX (the area code and central office code-the first 6 numbers of a telephone number) is per se compliant in determining what a party’s local time zone is. Note that it is difficult from a business perspective to know where the recipient is located (e.g. someone who has a Hawaii area code is currently in New York, which is six hours ahead), and the EIA asked the FCC to clarify that those sending texts can rely on the phone number itself to determine the local time of the called or texted party. The EIA argues that the FCC’s recent restriction of access to location data “negates businesses’ ability to comply with the Quiet Hours provision.”
The FCC is now seeking comments on EIA’s Petition (see: FCC page and Request for Comment).
Key Takeaways
Sending Texts is Still Risky: As discussed above, the plaintiffs’ bar is still bringing many claims for alleged violations of the TCPA. Clients often ask us the legal risks of sending text messages and whether those risks have decreased. We see the risks as significant given the statutory damages provided by the TCPA. In addition, we believe that the possibility of receiving a claim remains relatively high due to the active plaintiffs’ bar, in addition to the Supreme Court’s 2024 decision striking down the Chevron deference, which eliminated courts’ obligations to defer to federal agency rulings when interpretating ambiguous statutes. The elimination of the Chevron deference has created potential openings for plaintiffs to relitigate issues that were previously settled based on FCC interpretations. Thus, we do not see the risks as decreasing.
Reassess Practices: We recommend that businesses re-assess their texting practices, in particular, considering the time of day that they send texts; and whether to adjust their consent language. Implementing any changes will likely entail coordination with internal teams and vendors.
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.