The Federal Communications Commission (FCC or Commission) issued two notices for public comment in mid-March on hot-button issues, suggesting that newly-minted Chair Brendan Carr’s tenure will be an active one. On March 11, 2025, the FCC issued a notice for public comment on a recent petition for declaratory ruling relating to a huge increase in class actions alleging violations of the Telephone Consumer Protection Act (TCPA) based on telemarketing text messages sent outside the hours of 8 am and 9 pm. The FCC is interested in comments on a trade organization’s petition challenging the basis for those class action complaints.
Separately, and just a day later, on March 12, 2025, the FCC asked for comments on “deregulatory initiatives” that Commission should consider in light of the Trump Administration’s executive order directing agencies to alleviate regulatory burdens. The FCC titled that notice “In Re: Delete, Delete, Delete.”
After Hours Text Message Complaints
The first quarter of 2025 has seen a dramatic uptick in the number of putative class action complaints that allege that companies may not send marketing and solicitation text messages to consumers between the hours of 9 pm and 8 am unless the recipient has consented to receive messages during those hours. A trade organization known as the Ecommerce Innovation Alliance (EIA) filed a petition for declaratory action with the FCC, pointing out that any telemarketing text messages already require prior express written consent from the recipient, so the theory in these complaints is inherently flawed.
The FCC acted swiftly in response to the EIA petition by publishing a notice for public comment “regarding whether consumers who provide prior express written consent to receive text messages can claim damages under the Telephone Consumer Protection Act for telemarketing text messages received outside the hours of 8:00 a.m. to 9:00 p.m.” The EIA has asked the FCC to confirm that if a consumer has consented to receive telemarketing text messages, the calling party does not need to obtain separate consent to send those messages outside of the so-called “quiet hours” of 8 am through 9 pm in the text recipient’s time zone.
The EIA’s petition also seeks clarity on the related question of how a calling/texting party can comply with the quiet hours restrictions when calling/texting a mobile phone number. Without access to location data, the collection of which has been restricted by the FCC, calling/texting parties cannot definitively identify where the recipient may be located at a given time. The EIA’s petition seeks clarification that calling/texting parties may rely on “the area code (NPA) and central office code (NXX) (collectively, the first six digits of a ten-digit phone number) as a proxy for location.”
Public comments are due April 10, 2025, with reply comments due April 25, 2025. Quick action from the FCC on this issue could help stem the tide of these complaints.
In Re: Delete, Delete, Delete
The In Re: Delete, Delete, Delete public notice implicates the Commission’s broader remit and is not specific to the TCPA. The FCC’s rule-making authority over the TCPA has been the subject of recent and upcoming litigation. For example, the Eleventh Circuit Court of Appeals recently vacated the FCC’s so-called 1:1 Consent Rule, and the US Supreme Court will consider an FCC rule relating to the use of fax machines later this term.
The notice, issued on March 12th, outlines seven “policy factors” that commenters can consider in proposing regulations that the FCC may eliminate or modify, keeping in mind its stated goal of eliminating unnecessary burdens and increasing technological advancement and business growth. Those factors are:
- Cost-benefit considerations
- Experience gained from implementation of the rule
- Marketplace and technological changes
- Regulation as barrier to entry
- Changes in the broader regulatory context
- Changes in, or other implications of, the governing legal framework
- Other considerations relevant to the retrospective review of the Commission Rules
In soliciting comments on this topic, the FCC is signaling its openness to deleting or amending regulations that may hamper the progress and growth of consumer-facing businesses that act in good faith to comply with the TCPA while doing little to curb the behavior of bad actors, such as unregulated robocallers. Public comments for In Re: Delete, Delete, Delete are due April 11, 2025, with reply comments due April 28, 2025.
Conclusion
Companies can expect to see continued and rapid change coming from the FCC under its new chair. It is therefore imperative that companies not only keep up with these changes but also participate in the public comment process that will help shape future regulations directly impacting their marketing and advertising practices.
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