So the other day TCPAWorld.com reported on Circle K being caught in a massive TCPA class action due to marketing content in its opt in messages.

Eesh.

Well now competitor convenience store 7-Eleven is caught in a TCPA class action of its own and it also stems from low-hanging-fruit TCPA compliance issues that should never have happened (if it did.)

Background– the TCPA imposes call time limitations om messaging in some contexts. Messages cannot be sent before 8 am or after 9 pm. In some states–such as Florida–where this case is brought–the restrictions are even tighter.

Now interestingly, my read of the TCPA is that it only restricts telephone solicitations to call time hours, which means calls made with consent or an EBR are not subject to those restrictions. That is probably what 7-11 is thinking, but I am not sure. However, these exemptions do not seem to apply to state statutes. So, keep that in mind.

Regardless in the new case of Alexander Fernandez v. 7-Eleven, Plaintiff seemingly admits signing up to a 7-Eleven text club using a keyword (an always dangerous process, but that’s a topic for another day.)

While 7-Eleven does not appear to be using a double-opt in process (also odd) it does seem to be sending messages at off hours. Plaintiff provides screen shots demonstrating messages received at 9:40 and 9:41 pm.

The plaintiff seeks to represent a class of all individuals that received messages out of compliance with call time restrictions based on the called party’s time zone. Will be very interesting to see what data sets exist around such a class.

The plaintiff seemingly intentionally does not allege her phone number, so I am curious whether the area code matches Florida– where Plaintiff apparently lives. This might be a “panhandle special” where someone living in Florida’s central time zone is receiving messages intended for the eastern time zone– resulting in a message being sent at 8:41 being received at 9:41.

Then again, since Florida’s state restriction is 8 pm that wouldn’t seem to matter anyway.

Really interesting one. We will keep an eye on it.