Quiet Hours TCPA Class Actions: Defense Strategies

Description

The "quiet hours" provision of the TCPA (and many state counterparts) prohibits initiating a "telephone solicitation" to a residential telephone subscriber before 8 a.m. or after 9 p.m. local time at the called party's location.

As experienced practitioners know, calls or texts may be exempt from TCPA enforcement if the recipient gave prior consent or if the calls or texts were within an existing business relationship. In these new class action lawsuits, plaintiffs are alleging they received calls or messages outside quiet hours and that because they did not consent to receive calls or messages before 8 a.m. or after 9 p.m., the calls or texts violated the TCPA. This syllogism attempts to clear the predominance hurdle created by alleging merely that communications were "unsolicited."

Defense counsel have no established body of case law to which they can refer when responding to these new claims. A petition has been filed with the Federal Communications Commission to clarify that the quiet hours provisions do not apply if prior consent has been granted but has not been decided. Defendants need strategies for preventing costly discovery, advice about practically executing the strategy, and ways to prove they were operating in good faith to comply by creating and following sound policies and procedures. This can be especially difficult for quiet hours violations since there is no easy way to determine where mobile phones may be actually located at any given time.

Listen as this panel of TCPA class action defense experts discusses the defenses most likely to succeed, the challenges to certification, how to reduce plaintiffs' leverage, and non-litigation initiatives such as the petition currently pending before the FCC to curb these cases.