The Telephone Consumer Protection Act is a federal statute that governs various telemarketing practices. Following the U.S. Supreme Court decision in Facebook v. Duguid (narrowing the interpretation autodialer), the plaintiffs bar have focused on other aspects of the statute, including, but not limited to, automated calling restrictions with respect to artificial voices or prerecorded voice messages, and the Do Not Call rules.
Recent TCPA litigation trends now include alleged TCPA “quiet hours” violations.
The TCPA’s applicable implementing regulations, found at 47 C.F.R. § 64.1200(c)(1), provide, in pertinent part, that: “[n]o person or entity shall initiate any telephone solicitation” to “[a]ny residential telephone subscriber before the hour of 8 a.m. or after 9 p.m.” 47 C.F.R. § 64.1200(c) further states that these restrictions are “applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”
Telemarketers and those in the eCommerce industry may be keenly aware of the recent proliferation of demand letters and class action complaints alleging that purported marketing SMS text messages are violative of the Telephone Consumer Protection Act based upon such messages being sent and received between the hours of 9:00 PM and 8:00 AM.
Various petitions have been filed with the Federal Communications Commission to address the issue of whether “quiet hours” (or, curfew) restrictions apply to messages that are sent following consent by the recipient.
The petitioners have sought a declaratory ruling regarding whether consumers that provide prior 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. Petitioners also request waiver of section 64.1200(c)(1) of the Commission’s rules with regard to mobile phone solicitations made to wireless numbers or, in the alternative, clarification that there is a non-rebuttable assumption that the NPA-NXX is indicative of the called party’s location when applied to wireless phone numbers.
As curfew-based lawsuits continue to be filed, interested parties in the telemarketing and eCommerce sectors eagerly await a prompt ruling and clarification by the FCC.
Should businesses that have diligently secured prior consumer consent continue to be subject to quite hour lawsuits?
The petitioners believe that plaintiffs’ attorneys - some of which are believed to be soliciting clients via social media - are filing frivolous and unwarranted cases against companies that have obtained prior express invitation or permission from recipients prior to sending any text messages.
The petitioners believe that telephone solicitation curfew rules do not apply when voluntary prior consent has been obtained. Stated another way, messages sent with prior consent do not count as “telephone solicitations,” and therefore fall outside the timing restrictions altogether. If a consumer voluntarily opts-in, the timing of the text message is irrelevant. A consumer is free to revoke consent.
The petitioners also assert that businesses cannot practically track the local time zone of consumers, in large part, due to consumers’ mobility and the implementation of various legal regulatory data related privacy protections.
Those on the other side of the aisle believe that the curfew restrictions apply to all messages, regardless of consent. They argue that consent should not extend to receiving message during quiet hours unless expressly disclosed and agreed upon.
Consequently, according to the petitioners, marketers that have secured lawful, valid consent are not, by definition, sending “telephone solicitations.” Yet, they continue to be forced to fend off aggressive demands and lawsuits that come with statutory damages that range from $500 to $1,500, per message.
Contact an experienced FTC CID lawyer to discuss the implementation of preventative telemarketing compliance measures designed to fend off “quiet hour” claims while formal FCC regulatory guidance or judicial intervention is pending, or if you have received a TCPA demand letter.
