Actual spam calls have become a pervasive annoyance. On the other hand, text messages delivering information about exclusive sales and discounts are surely not if you have signed up for such messages. But what about if those coveted discount code text messages are received late at night or early in the morning? That’s the question being raised in a flurry of class action complaints filed by the same Florida-based law firm.

Key Takeaways

While these claims are sorted out, we recommend that businesses who send marketing messages ensure that such marketing messages are sent between the hours of 8:00 am and 9:00 pm based on the call recipient’s location. How do you determine the call recipient’s location for cell phones? A defensible position is using the call recipient’s area code to determine the caller’s location, although this is not a fool-proof method as people travel to different time zones with their cell phones. However, using the area code to assess location gives the business a defensible position, for now, as the plaintiffs in these recent class actions claim that they live in the area associated with their telephone’s area code. That defense may still be subject to challenge, though. In the alternative, businesses could obtain prior express written consent to receive marketing messages throughout the day, although from the plain reading of the Telephone Consumer Protection Act (“TCPA”), this should not be required.

Consent to Receive Marketing Messages

By way of background, the TCPA requires that callers obtain the recipient’s prior express written consent prior to sending the recipient marketing text messages. Further, the TCPA and implementing rules contain call time restrictions whereas “[n]o person or entity shall initiate 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)…” 47 C.F.R 62.1200(c)(1). These call time restrictions only apply to “telephone solicitations.” Telephone solicitations do not include messages sent to a called party with that party’s” prior express invitation or permission.” 47 C.F.R. 62.1200(f)(15) (“The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message: (i) To any person with that person’s prior express invitation or permission; (ii) To any person with whom the caller has an established business relationship; or (iii) By or on behalf of a tax-exempt nonprofit organization.”).

Prior express written consent is defined as “an agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice.” 47 C.F.R. 62.1200(f)(9)

Prior express invitation or permission is defined as “a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.” 47 C.F.R. 64.1200(c)(2)(ii).

Although “prior express written consent” and “prior express invitation or permission” are different terms, they are defined in essentially the same way. If a caller has the prior express written consent of the called party to send marketing messages, surely the caller has the prior express invitation or permission to send such messages, and therefore, the messages are not a telephone solicitation. Right?

Quiet Hour Claims in Recent Class Action Complaints

Not so fast, says this Florida-based law firm! Over the past few weeks, there have been over 100 (and counting) class action complaints filed by the same law firm alleging that marketing text messages can only be sent between the hours of 8:00 am and 9:00 pm (local time at the called party’s location) (“Quiet Hour Claims”). The Quiet Hour Claims are largely the same in each case: the plaintiff received a marketing message before 8:00 am or after 9:00 pm, the plaintiff did not consent to receive telephone solicitations before 8:00 am or after 9:00 pm, and therefore, messages received during those quiet hours violate the TCPA. Seemingly absent is any claim regarding the text recipient’s initial consent to receive such marketing messages.

Quiet Hour Claims are Unsupported by the Plain Reading of the TCPA

Based on our review of the TCPA, we disagree with this argument because marketing text messages already require prior express written consent from the called party. Absent in these relevant Quiet Hour Claims are statements that marketing messages were sent without such consent of the called party. If the caller has the prior express written consent of the called party to send a marketing message, the caller also likely has the called party’s prior express invitation or permission to send such a message, and therefore, the consented to the marketing message is not a “telephone solicitation.”

The Quiet Hour Claims appear to be misguided and not supported by the law. However, that has not prevented these class actions from being filed and thus remain a real legal and financial risk to businesses who send marketing messages even though the business had obtained prior express written consent from the recipient as the Quiet Hour Claims.

Petition for Declaratory Ruling on Quiet Hour Claims

On March 3, 2025, a petition for declaratory ruling (“Petition”) regarding the Quiet Hour Claims was filed with the Federal Communications Commission (“FCC”) by the Ecommerce Innovation Alliance. The Petition, in relevant part, “ask(s) the Commission to reaffirm that the ‘Quiet Hours’ provision, prohibiting telephone solicitations between 9 p.m. and 8 a.m., is inapplicable if prior consent has been granted.” The FCC has received many such Petitions over the years and has decided some, while others remain pending or were withdrawn without resolution. In terms of the timing of any FCC action on the Petition, if it were so disposed, the FCC would put the Petition out on Public Notice and then gather comments over what could be a 60-day period before assessing the record and preparing to decide the issue. In that regard, while the rule seems clear, what is unclear is how enthusiastic the FCC would be in ruling that if you give your consent, you can receive “telephone solicitations” on your residential phone (which could be your cellphone) at any time. On top of all this, there are various Executive Orders issued by the new Administration, which adds to the uncertainty as to how quickly the FCC could act if it decides to do so.

An FCC ruling on the Quiet Hour Claims, though, would provide much needed clarity for plaintiff’s attorneys nationwide.

We will be watching the Quiet Hour Claims.