The TCPA litigation landscape is currently experiencing an unprecedented surge in class action lawsuits targeting companies for marketing text messages sent outside of federal or state mandated "quiet hours."
These cases represent a fundamental shift in Telephone Consumer Protection Act (TCPA) litigation strategy, moving away from claims based on DNC or automatic telephone dialing system (ATDS) violations toward the time in which messages are sent. This emerging trend has created substantial legal and financial risks for businesses engaged in text message marketing, triggering industry-wide concern and calls for regulatory clarification.
Understanding TCPA Quiet Hour Provisions
The FCC regulations implementing the TCPA, found at 47 C.F.R. §64.1200(c)(1), explicitly prohibit telephone solicitations to residential telephone subscribers before 8:00 a.m. or after 9:00 p.m. in the called party's local time zone. Dubbed the “quiet hour” provisions, these prohibitions apply to text messages as well as calls.
Originally intended to prevent disturbing phone calls during times when people may be asleep or otherwise relaxing, the TCPA quiet hour provisions were relatively easy to navigate when calls were almost exclusively made to landlines with area codes that corresponded to the called party's location. However, the mobile nature of cellular numbers has complicated compliance significantly.
Violations of these provisions can result in significant penalties—$500 per violation, or $1,500 if the conduct is deemed willful—potentially on a class-wide basis. Given that marketing campaigns often involve thousands of recipients, the financial exposure for companies can quickly escalate into millions of dollars.
The Current Litigation Explosion: A Coordinated Campaign
Starting in late 2024, there has been a dramatic increase in class action lawsuits specifically targeting TCPA quiet hour violations, which have accelerated through the first quarter of 2025. One Florida-based law firm has been particularly active, filing well over 100 cookie-cutter Complaints since November 2024, primarily in Florida and California District Courts.
The recent flurry of litigation has been supercharged by highly effective social media ads run by the firm, targeting cash-hungry consumers with pitches like "marketing texts between 9pm-8am are worth money! Lots of money...". While the firm may consider its campaign a resounding success, the dozens of hapless e-commerce brands targeted by these lawsuits would undoubtedly disagree.
High-Profile Companies in the Crosshairs of TCPA Quiet Hour Litigation
Several notable companies have found themselves defending TCPA quiet hour class actions in recent months, as exemplified by the following cases:
- Laureta v. Dave & Buster's Inc.: The popular entertainment venue now faces potential class-wide liability if the Plaintiff’s claim of receiving three text messages between 3:00 a.m. and 6:00 a.m. are proven true.
- Vallejo v. R.J. Reynolds Tobacco Company: The tobacco giant became another high-profile target in March 2025, when the plaintiff filed suit after allegedly receiving early-morning marketing texts between 7:15 a.m. and 7:36 a.m. local time, causing "intrusion into the peace and quiet in a realm that is private and personal to Plaintiff and the Class members.”
- Torres v. Steve Madden, Ltd.: Footwear company Steve Madden has also been targeted in a recent suit in which the plaintiff claimed to have received marketing text messages before 8:00 a.m.
- James v. Disney DTC LLC: The fabled House of Mouse also fell victim to accusations of sending messages to the plaintiff touting discounts for the Disney Store at 6:01 am in the plaintiff’s time zone.
- Hensley v. Regal Cinemas, Inc.: The movie theater chain was tagged for allegedly sending texts to the plaintiff at 7:21 a.m. offering free popcorn in celebration of National Popcorn Day
The aforementioned cases and numerous others filed by the firm share nearly identical structures and class definitions, suggesting a coordinated litigation strategy across multiple jurisdictions.
Prior Consent vs. Quiet Hours
At the heart of these lawsuits lies a fundamental legal question: Do quiet hour restrictions apply to text messages sent with the recipient's prior express written consent? This question has created significant controversy in the legal community and among those targeted with litigation.
The plaintiffs in these cases argue that any marketing text message received outside quiet hours violates the TCPA, regardless of whether the recipient previously consented to receive them. Indeed, many complaints specifically allege that while the plaintiff may have consented to receive the messages at issue, they never consented to receive them before 8 am or after 9 pm.
On the other hand, defendants and industry advocates counter that a message sent with prior express written consent does not qualify as a "telephone solicitation" as that term is defined in 47 C.F.R. §64.1200(f)(15), which specifically excludes calls or messages sent "to any person with that person's prior express invitation or permission," a definition that seems to exclude consented marketing messages from the scope of quiet hour restrictions. Despite this definition, courts have yet to definitively resolve the question, leaving businesses in a precarious legal position.
The Industry Petition for FCC Clarification
In response to the flurry of litigation, on March 3, 2025, the Ecommerce Innovation Alliance (EIA) submitted a petition to the FCC seeking a declaratory ruling that "individuals who provide prior express written consent to receive text messages cannot claim damages under the TCPA for messages received outside the hours of 8 a.m. to 9 p.m."
The EIA argues that granting this petition would "put attorneys on notice that claims ignoring prior written consent are frivolous and provide ample basis for a court to award sanctions against lawyers and plaintiffs who continue to proliferate baseless Quiet Hours litigation.”
Beyond clarifying the consent issue, the petition also addresses a practical challenge: determining a mobile recipient's location, which represents a particular challenge with mobile phones that routinely cross time zones and mobile numbers that may be retained when moving to a new locations.
The petition therefore asks the FCC to either waive the quiet hour requirement for mobile phones entirely or declare "that there is a non-rebuttable presumption that the called party is located in the time zone associated with the area code of the consumers' mobile telephone number."
Practical Challenges for TCPA Quiet Hour Compliance
For businesses engaged in text message marketing, the threat of TCPA quiet hour lawsuits pose a serious threat, coupled with equally serious compliance challenges, not the least of which is the challenge of determining a mobile user's actual location, rather than what their area code appears to suggest.
There is also the issue of state telemarketing laws that impose more onerous quiet hour restrictions than the federal standard of 8:00 am to 9:00 pm. For example, Alabama, Mississippi, and Louisiana restrict marketing calls to between 8:00 a.m. and 8:00 p.m. and prohibit calls on Sunday. South Dakota also prohibits marketing calls on Sunday but allows them between 9:00 am and 9:00 pm every other day, while Utah is also another no-Sunday state, but otherwise adheres to the federal standard on all other days.
Clearly, the challenge of navigating these variations can be considerable, which puts businesses that engage in text marketing in a difficult position. Even if they successfully navigate multiple state quiet hour regulations, they still risk becoming the next target of a quiet hour lawsuit by contacting someone who just completed a cross-country move.
Best Practices for Risk Mitigation
While awaiting definitive guidance from the FCC or courts, businesses can take several steps to mitigate their risk of facing TCPA quiet hour litigation, starting with adhering to the most restrictive state regulation by limiting their marketing text messages to between 10:00 a.m. and 8:00 p.m. recipient local time, and refrain from sending any messages on Sunday.
Another option is to secure specific consent for sending messages outside of quiet hours, at least until the FCC addresses the issue framed in the EIA petition. However, this comes with its own set of challenges, including lengthening an already verbose TCPA disclosure statement.
Finally, keep in mind that any defense is only as good as the evidence backing it up, so be certain to maintain adequate records documenting all consent obtained from consumers, as well as the exact timing and content of all marketing messages sent.
A Developing Area of Litigation Risk
TCPA quiet hour class actions are entirely different from the standard DNC or ATDS claims that have dominated the class action landscape for so long. As such, time-based violations represent a new frontier in TCPA litigation and yet another source of risk in an already risky environment.
Any businesses engaged in text message marketing must understand and address this risk. In the absence of definitive regulatory guidance, companies should approach their messaging schedules conservatively, document consent thoroughly, and consider consulting with legal counsel to establish defensible compliance practices.
