Hi TCPAWorld and happy Monday! The Baroness here. I hope everyone had a good Thanksgiving and ate a lot of good food!  I’m still stuffed.

There is a new case out in the Middle District of Pennsylvania.

On November 23, 2022 (right before Thanksgiving), Kevin Kennedy filed a class action suit against Buchanan Automotive, Inc. The main allegation against Buchanan is the practice of advertising via unsolicited text message marketing to individuals on the National DNC Registry without prior express written consent.

Folks, we see this time and time again—individuals being contacted while their phone number is on the National DNC Registry. If you folks are engaging in direct-to-consumer marketing and not scrubbing the National DNC Registry, this is your sign to do it. At the very least, this is what should be done.

Kennedy brings this action on behalf of two nationwide classes:

Plaintiff and all persons within the United States (1) to whose telephone number Defendant placed (or had placed on its behalf) two or more text messages, (2) from four years prior to the filing of the Compliant to the date of certification, (3) for the purpose of encouraging the purchase of Defendant’s products (4) in a 12-month period (5) when the telephone number to which the text messages were sent was on the National Do-Not-Call Registry at the time of the messages.

(the “DNC Class”)

Plaintiff and all persons within the United States (1) to whose telephone number Defendant placed (or had placed on its behalf) two or more text messages, (2) from four years prior to the filing of the Compliant to the date of certification, (3) between the hours of 9:00pm and 8:00am local time, (4) for the purpose of encouraging the purchase of Defendant’s products (5) in a 12-month period.

(the “Time Class”)

It’s not too often that I see TCPA cases filed based on the time restriction provision. Please recall 47 C.F.R. § 64.1200(c)(1) states that “No person or entity shall initiate any telephone solicitation to: Any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).”

Here, Kennedy attached screenshots to the Complaint which show the text messages were sent on 7:18 a.m. and 11:25 p.m. There could easily be a violation here, if the text messages are true and accurate of course. More investigation to verify the text messages will need to be done here.

Since the case was just filed, there is not much to report on just yet. It will be interesting to see what Buchanan does to answer or otherwise respond to the Complaint. Will a 12(b)(6) motion be filed? How about a motion to strike the class allegations?

More to come TCPAWorld. We will continue to keep an eye on this one.