Coming out of the holiday season, it is time to remind you folks to recheck your telemarketing practices and procedures before making text messages and phone calls. As a refresher in the new year, the Telephone Consumer Protection Act not only limits who may be contacted, but also limits when contact can be made.

Pursuant to 47 U.S.C. § 227(c)(5), it is a violation to make calls or send text messages before 8 AM and after 9 PM, in the local time zone of the recipient. While we don’t see much litigation happening around this provision, a new lawsuit was just filed in the Central District of California alleging a violation of this exact provision.

In Bernal v. Mixtiles USA, Inc., Plaintiff Bernal alleges that two different text messages were sent by Defendant Mixtiles: one at 6:21 AM and another at 6:53 AM, pacific time—Plaintiff’s time zone. No. 5:25-cv-00006, (N.D. Cal. filed Jan 2, 2025).

Although Defendant Mixtiles is incorporated in Delaware and happens to have its headquarters in the eastern time zone, the lawsuit alleges violations of the TCPA based on the time that these text messages were received by the Plaintiff, in Plaintiff’s local time. The plaintiff alleges that the fact that the messages were compliant with this provision of the TCPA on eastern time (or even central time) does not bar Plaintiff’s claims.

Plaintiff brings this action on behalf of himself and similarly situated individuals:

“All persons in the United States who from four years prior to the filing of this action through the date of class certification (1) Defendant, or anyone on Defendant’s behalf, (2) placed more than one marketing text message within any 12-month period; (3) where such marketing text messages were initiated before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).”

Plaintiff does not allege that he was ever on the National Do Not Call Registry, though it is always a good reminder for companies to scrub the National DNC Registry before making calls or sending messages: Do Not Call Registry. Contrary to the time zone specific provisions of the TCPA, we DO often see litigation around the TCPA’s National DNC provisions.

The lesson from this lawsuit is clear—telemarketers must be mindful of the local time zone of the recipient of their marketing calls and text messages!