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In recent months, businesses across various industries have been hit with a wave of lawsuits targeting alleged violations of the Telephone Consumer Protection Act’s (“TCPA”) call time rules. Plaintiffs are increasingly claiming that text messages, often sent just minutes outside the allowable hours, violate the Federal Communication Commission’s (“FCC”) rules and entitle them to substantial compensation. These lawsuits are creating challenges for businesses that rely on telemarketing and short message service (“SMS”) programs, even when they have received prior consent from their customers.

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Understanding the TCPA’s Statutory and Regulatory Framework

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The TCPA, enacted in 1991, was designed to protect consumers from unwanted telemarketing calls. Over time, its reach has expanded to cover text messages, making businesses that engage in text message marketing campaigns subject to compliance. One key area of regulation is the TCPA’s call time rules, found in the Do-Not-Call (“DNC”) regulations issued by the FCC. These rules prohibit telephone solicitations to residential subscribers before 8:00 AM or after 9:00 PM local time at the called party’s location.

Under the TCPA, a “telephone solicitation” is defined as a call or message made for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. Importantly, the statute and regulations carve out several exceptions, including for calls or messages made to individuals who have given prior express consent to be contacted.

The penalties for violating the TCPA can be severe. Violations can result in statutory damages ranging from $500 to $1,500 per call or message, depending on whether the violation was willful. These potential damages create significant exposure for businesses that rely on telemarketing or SMS outreach, particularly when multiple calls or messages are at issue.

Recent Wave of Lawsuits and Why the Claims Are Unmeritorious

Despite the FCC’s long-standing guidance and the clear statutory language regarding consent, plaintiffs have increasingly filed lawsuits alleging that text messages sent outside the 8:00 AM – 9:00 PM window violate the TCPA’s call time restrictions. Many of these lawsuits focus on minor deviations from the permissible time window, such as texts sent just minutes before 8:00 AM or shortly after 9:00 PM.

What makes these lawsuits particularly problematic is that in many cases, the plaintiffs had previously opted into the SMS programs and expressly consented to receive marketing messages. Under the plain language of the TCPA and FCC regulations, such consent removes the text message from the definition of a “telephone solicitation” and, by extension, exempts it from the call time restrictions. This means that businesses with valid consent should not be subject to these lawsuits.

However, plaintiffs are exploiting the uncertainty created by the lack of clear FCC guidance on whether the call time rules apply to text messages where consent has been provided. They argue that, regardless of consent, any text message sent outside the permissible hours violates the TCPA, leaving businesses vulnerable to litigation and potential class action exposure.

In response to this growing litigation trend, an industry group recently filed a petition with the FCC, seeking a declaratory ruling that the TCPA’s call time restrictions do not apply to text messages sent to individuals who have given prior express consent. The petition highlights the plain language of the statute and regulations, arguing that consent should exempt businesses from the call time rules and shield them from the growing number of predatory lawsuits.

The petition also requests clarification or waiver of the rule requiring knowledge of the recipient’s location for compliance, arguing that current standards are unworkable and lead to abusive litigation practices. The petitioners emphasize that the TCPA’s unique combination of strict liability, statutory damages, and private right of action make it ripe for lawsuit abuse, with opportunistic litigators targeting legitimate businesses.

While this petition represents a positive step towards clarifying the law, the FCC’s rulemaking process can be lengthy. In the meantime, businesses must continue to operate in a landscape where uncertainty about the applicability of the call time rules remains. It could be months, if not longer, before the FCC issues a ruling, and during this time, we expect plaintiffs’ attorneys to continue targeting businesses with TCPA lawsuits.

Until the FCC provides clear guidance on the issue, businesses should take proactive steps to mitigate the risk of being targeted by TCPA quiet hour lawsuits. Here are several recommendations to help ensure compliance and reduce exposure:

Observe Call Time Windows: Despite the legal uncertainties surrounding the applicability of the call time rules to text messages, businesses should err on the side of caution and adhere to the 8:00 AM – 9:00 PM window for sending marketing messages. This simple step can help reduce the likelihood of being sued.

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Review and Update Consent Mechanisms: Businesses should review their SMS consent processes to ensure that they are obtaining clear and unambiguous consent from consumers. This includes updating terms and conditions to include disclosures about the potential timing of messages and ensuring that consumers understand the nature of the messages they will receive.

Implement Robust Compliance Procedures: Businesses should implement internal procedures to monitor the timing of their telemarketing and SMS campaigns. Consider using software that can automate the scheduling of messages.

Document Consent Thoroughly: If a lawsuit arises, being able to produce clear documentation that demonstrates a consumer’s consent to receive text messages will be critical in defending against the claim. Businesses should maintain detailed records of when and how consent was obtained.

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The recent surge in TCPA lawsuits alleging violations of the call time restrictions highlights the need for businesses to stay informed and proactive in their compliance efforts. While we believe that many of these lawsuits are unmeritorious, businesses should still remain cautious. By observing the 8:00 AM – 9:00 PM call time window, reviewing consent mechanisms, and implementing strong compliance procedures, businesses can reduce their risk of being targeted by predatory lawsuits.

We will continue to monitor litigation in the courts and the FCC’s response to the pending petition, and provide updates as new developments arise. In the meantime, please reach out if you have any questions or need assistance in reviewing your telemarketing and SMS programs to ensure compliance with the TCPA.

For more information or assistance, please contact <a href="/people/harrison-brown/" id="19173">Harrison Brown</a>, <a href="/people/ana-tagvoryan/" id="19295">Ana Tagvoryan</a>, <a href="/people/jeffrey-n-rosenthal/" id="19233">Jeffrey Rosenthal</a> or another member of Blank Rome’s <a href="/services-and-industries/litigation/business-litigation/" id="18541">Business Litigation</a> group.

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This alert was published in <a href="https://admin.blankrome.com/wp-content/uploads/2025/03/IPTLJ-Tick-Tock-Dont-Get-Caught-092925.pdf" id="37449">Intellectual Property &amp; Technology Law Journal</a>, Volume 37 Number 6, on May 29, 2025.

Tick-Tock, Don’t Get Caught: Navigating TCPA’s Quiet Hours

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Tick-Tock, Don’t Get Caught: Navigating TCPA’s Quiet Hours

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