Navigating a TCPA Minefield: Understanding the “Quiet Hours” Rule

Regulations should be clear and predictable. Businesses should be able to operate with a reasonable understanding of their legal obligations, free from the threat of opportunistic lawsuits that exploit perceived ambiguities in the law.

The Telephone Consumer Protection Act (TCPA), enacted in 1991 to curb certain unwanted telemarketing calls, was clarified via FCC implementing regulations to prohibit initiating any telephone solicitation to a residential telephone subscriber before 8 a.m. or after 9 p.m. local time at the called party’s location. This is known as the “Quiet Hours” provision. While the aim of protecting consumers from late-night intrusions is understandable, the application of this rule, particularly in the context of modern communication technologies like text messaging, has created fertile ground for litigation abuse, and a case example for litigation reform.

The Role of Prior Express Written Consent

The FCC, which adopts the rules for the TCPA, has confirmed that calls made with prior permission do not constitute “telephone solicitations” under the TCPA, as provided in the definition adopted by Congress. This aligns with the fundamental understanding that if an individual has willingly agreed to receive communications, they have, to some extent, relinquished their right to be free from the specific communications they have agreed to receive.

Yet plaintiffs’ firms are aggressively pursuing claims alleging TCPA violations based solely on the time of day a text message was delivered, even when the recipient had previously provided express written consent to receive such messages.

One particularly active law firm in South Florida has even launched social media campaigns promising consumers monetary awards for messages received during these “Quiet Hours,” falsely claiming such texts are automatically “illegal.” The social media advertisements used by this firm further illustrate the problematic nature of this litigation. By unequivocally stating that any text message received during Quiet Hours is “illegal” and entitles the recipient to “$500 to $1500 per text message,” the firm actively misleads consumers and encourages them to file potentially baseless claims. This predatory behavior not only harms businesses forced to expend significant resources defending themselves—often $75,000 or more—but also undermines the legitimate purpose of the TCPA.

The Ecommerce Innovation Alliance (EIA) and other petitioners have asked the FCC to issue a declaratory ruling confirming that individuals who provide prior express written consent to receive text messages cannot claim damages under the TCPA for messages received outside the 8 a.m. to 9 p.m. window. As the petitioners argue, once a consumer has consented, their direct remedy under the TCPA is to revoke that consent if they are disturbed about the timing of the messages they receive. That is, the process gives the consumer complete authority to opt-in and opt-out, as the consumer deems appropriate. This interpretation is supported by the FCC’s own statements in a 2003 Order expanding the TCPA’s reach to wireless numbers. The Commission explicitly stated that sellers may contact consumers on the national do-not-call list if they have obtained prior express written permission. The logic extends naturally to the Quiet Hours provision: consent negates the unsolicited nature of the communication that the rule seeks to prevent. To suggest otherwise imposes an unreasonable burden on businesses to constantly monitor and adhere to individual time preferences for communications they have already been authorized to send. Further, adopting this interpretation would reaffirm the proper view that the TCPA and the FCC’s implementing regulations preserve the right of the consumer (where she has given express written consent) to receive such texts notwithstanding the Quiet Hours.

The Unworkability of “Called Party’s Location” for Wireless Devices

Adding to the complexity is the FCC’s requirement that telephone solicitations to residential subscribers adhere to Quiet Hours based on the local time at the called party’s location. This standard was relatively straightforward in the 1990s when it primarily applied to landline telephones, where the area code and central office code (NPA-NXX) directly correlated with a geographic area.

However, the ubiquity of mobile phones and the advent of local number portability have rendered this requirement practically impossible to comply with in many situations. Consumers routinely retain their phone numbers even when they move across state lines and time zones. Unlike when wireless service was more localized, today’s market is dominated by nationwide carriers. As a result, a business sending a text message has no reliable way to know the recipient’s actual location at the precise moment of delivery. The practical effect of this has been a substantial increase of the Quiet Hours period beyond that adopted by the FCC regulations.

The FCC itself has taken actions in other areas that exacerbate this challenge. In April 2024, the Commission fined major mobile carriers for sharing access to consumers’ location data. This prevents businesses from accessing the very data they would theoretically need to comply with the “called party’s location” requirement for wireless solicitations made without prior express written consent. Businesses are thus placed in an untenable position: they are obligated to comply with a rule while unable to access information necessary to do so.

In their petition, the EIA and other businesses propose two logical solutions to this quandary. First, they request a waiver of the FCC’s Quiet Hours prohibition for telephone solicitations to wireless phones due to the impossibility of compliance. Given the technological realities and the FCC’s own actions regarding location data, this seems a reasonable and necessary step.

Alternatively, the petitioners propose that the Commission create a non-rebuttable presumption that a wireless phone’s NPA-NXX is the called party’s location for the purposes of the rule. While not a perfect solution, relying on the area code and central office code as a proxy for location is a long-standing industry practice and currently provides the only consistently available data point. This would provide businesses with a clear and workable standard for compliance, mitigating the risk of lawsuits based on time zone discrepancies.

The FCC Can Restore Balance

For lawyers who champion the rule of law and a fair regulatory environment, the current state of affairs regarding the TCPA’s Quiet Hours provision is deeply concerning. The rise of Quiet Hours litigation, fueled by ambiguous regulations and the practical impossibility of compliance for wireless communications, imposes undue burdens on businesses and is starting to clog our court system.

The FCC can address these issues by granting the relief requested in the EIA petition. Reaffirming that prior express written consent exempts messages from the Quiet Hours restrictions and providing a clear, workable standard for determining the “called party’s location” for wireless devices can restore balance to the TCPA. Such actions would not only curb abusive litigation and protect law-abiding companies but would also ensure that the TCPA can once again focus on its original purpose: protecting consumers from truly unwanted and intrusive communications. Thus, the Commission would be able to decisively provide the clarity and predictability that the business community—and the principles of sound regulation—demands without negatively impacting consumers.