Hi folks!

A couple weeks back, we saw a lawsuit filed in the Northern District of California alleging a TCPA violation due to the times telemarketing messages were sent. The claims had nothing to do with consent. Rather, that plaintiff alleged violations of the TCPA because the messages were sent before 8 a.m.

The TCPA does prohibit calls and text messages before 8 a.m. and after 9 p.m. See 47 C.F.R. § 64.1200(c)(1). However, individual claims (let alone entire lawsuits) alleging violations of these TCPA time zone provisions are quite uncommon. Still, another lawsuit was filed, this time in the Central District of California, alleging only violations of the time zone provisions. Plaintiff’s counsel is the same as in the above Northern District of California case.

The Plaintiff in Alvarez v. Seated, Inc. alleges that four telephone solicitations were sent to her before 8 a.m. in her local time zone. No. 8:25-cv-00079, (C.D. Cal. filed Jan 16, 2025). Even though the text messages complied with the time zone provisions in the Defendant’s time zone, the TCPA does specify that the time zone of the recipient is the basis for liability, not that of the sender. See 47 C.F.R. § 64.1200(c)(1).

Based on Plaintiff’s allegations, it appears that she signed up to receive alerts when an artist (John Mayer) announced new concerts. So, Plaintiff got two, separate notifications when John Mayer announced new events. Then, Plaintiff received two verification codes—you know, the things you receive when you try to sign into a website.

Maybe Plaintiff just really wanted those tickets?

In any case, Plaintiff seeks to represent the following class based solely on the time zone provisions of the TCPA: “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).” Alvarez v. Seated, Inc.,No. 8:25-cv-00079, at 5 (C.D. Cal. filed Jan 16, 2025).

In large part, it remains to be seen how courts will handle these types of TCPA class allegations. We will be sure to keep you posted!

While you’re here, the big news at TCPAWorld is the ongoing uncertainty as to the implementation of the FCC’s one-to-one consent rule, which (as of now) is set to take effect on January 27, 2025. Under the rule, businesses must obtain separate written consent for each entity that sends marketing communications.

However, an executive order by the President and emergency petition filed with the FCC based on that order could delay its implementation. 

Talk soon!