The Ecommerce Innovation Alliance (EIA) recently filed reply comments with the Federal Communications Commission (FCC) in strong support of our Petition for Expedited Declaratory Ruling and/or Waiver. This filing, along with filings from other industry participants like the Mobile Ecosystem Forum (MEF) and Responsible Enterprises Against Consumer Harassment (R.E.A.C.H.), reinforces the critical need for the Commission to act decisively to address an escalating crisis of frivolous litigation exploiting the Telephone Consumer Protection Act (TCPA).
As the voice of ecommerce, the EIA is dedicated to advocating for common-sense policies that strengthen our industry while protecting consumer privacy. We are witnessing a clear misuse of the FCC’s quiet hour rules by opportunistic actors, fueled by misleading advertising, leading to significant and unwarranted burdens on law-abiding ecommerce businesses and the judicial system.
Clarifying ‘Quiet Hours’ and Prior Express Written Consent
A primary focus of our Petition and subsequent reply comments is to urge the Commission to reaffirm the settled principle that the TCPA’s quiet hours provision (47 C.F.R. § 64.1200(c)(1)) does not apply to consumers who have granted prior express written consent (PEWC) to receive marketing text messages. Opponents, particularly the Hindi Firm, have erroneously attempted to argue for a requirement of specific time-of-day consent, a notion that has absolutely no basis in the Commission’s rules or established TCPA interpretations.
The Commission has clearly stated that calls or messages made with prior express invitation or permission do not constitute “telephone solicitations” and are therefore exempt from the quiet hours restriction. The established mechanism for consumers to control the timing of communications is through revoking consent.
The recent surge in litigation specifically targeting consented messages sent outside purported “quiet hours” highlights the manufactured nature of these claims and the urgent need for the FCC to reaffirm its established precedent. These cases are often based on messages sent only a minute or two outside the 8 a.m. to 9 p.m. window, sometimes filed years after the message was sent. Our investigation reveals that the vast majority of companies targeted by this “crusade of litigation” have obtained not just prior express invitation or permission, but prior express written consent. Cases filed against businesses who meet this standard are, in our view, patently frivolous on their face.
The Hindi Firm’s attempts to distinguish between “general invitation or permission” and a “specific invitation or permission to receive solicitations ‘before 8 a.m. or after 9 p.m.’ or at ‘any time’” are creative litigation tactics lacking support in the rules or TCPA interpretations. Cases cited by opponents regarding limited consent primarily relate to the scope or purpose of consent, not the time of day, and many such cases reject the notion of implicit limitations.
As the regulator of the quiet hours provision, the FCC is the proper authority to interpret its scope and applicability and resolve this manufactured controversy, rather than leaving it to potentially contradictory court interpretations.
Addressing the Unworkable ‘Called Party’s Location’ Standard
Our Petition also requests a waiver of the “called party’s location” standard in the quiet hours rule, specifically as it applies to telephone solicitations made to mobile phones without prior express written consent. Arguments against this waiver failed to address the fundamental impossibility of compliance in the context of ubiquitous mobile communications.
Businesses simply lack the ability to definitively know a mobile subscriber’s real-time geographic location prior to transmitting a message. This is directly due to consumer privacy protections championed by this Commission itself, which restrict access to real-time location data (classified as Customer Proprietary Network Information or CPNI). Maintaining a rule that necessitates access to this protected information for compliance is contradictory and establishes an unworkable standard.
Suggestions by opponents to avoid solicitations or rely on non-existent technological solutions are not practical or commercially viable. The burdens of monitoring individual calling preferences for landline phones, which concerned the Commission previously, pale in comparison to the insurmountable challenge of ascertaining the real-time location of mobile subscribers.
Therefore, the EIA firmly believes that a waiver of the “called party’s location” requirement for wireless solicitations without prior express written consent remains the most effective solution. This would align the Commission’s regulations with technological realities and protect legitimate businesses, consistent with the “Delete, Delete, Delete” agenda.
We have alternatively proposed a non-rebuttable presumption based on NPA-NXX. A rebuttable presumption, as urged by opponents, would introduce unacceptable complexity and invite further litigation abuse. Having data like a consumer’s address is not the same as knowing their real-time location before a message is sent. Businesses trying to reconcile conflicting data points (e.g., billing address in one state, shipping address in another, IP address from a third) would be in a lose-lose scenario, inevitably leading to the same type of gamesmanship the Petition seeks to end. A clear, consistently applied rule is preferable to the current unworkable standard or the convoluted uncertainty of a rebuttable presumption. MEF supports either a waiver or clarifying that reliance on the area code meets the rule, recognizing the impossibility for senders to obtain subscriber location data.
Support for Decisive Action
MEF filed its reply comments in strong support of the EIA Petition, recognizing the critical importance of these issues for both domestic and international businesses relying on SMS to engage with US consumers. MEF shares our concern about the exploitation of the Quiet Hours rule and the practical difficulties of ascertaining real-time location, which leads to frivolous lawsuits against legitimate businesses. MEF agrees that prompt FCC action is crucial to fostering a stable regulatory environment.
R.E.A.C.H.’s reply comments, representing direct-to-consumer marketing and lead generation members, support clarifying that calls made with any TCPA consent are not solicitations and thus not subject to time restrictions. They highlight the sheer volume of “Quiet Hours” cases filed by a single law firm (over 200 through April 24, 2025) as evidence of the magnitude of abuse and litigation. R.E.A.C.H. notes that the majority of these cases involve texts sent within an hour or two of the quiet hours boundary and points out that a significant portion of these cases (over 41%) have settled despite being on the docket only briefly, supporting the claim that the goal is to force settlements rather than consumer protection.
The Time for Clarity is Now
The record before the Commission firmly establishes the necessity of reaffirming that the rules regarding quiet hours do not apply to consumers who have granted prior express written consent. The arguments against this position, particularly the attempt to invent distinctions in consent, are unsupported by the plain language and established interpretation of “telephone solicitation”.
Furthermore, the arguments against granting a waiver for the “called party’s location” standard on mobile phones fail to confront the fundamental impossibility of compliance given consumer privacy protections. A rebuttable presumption based on NPA-NXX would only exacerbate compliance difficulties and invite more litigation.
For these reasons, and as detailed in our Petition and reinforced by supporting reply comments, the EIA respectfully urges the Commission to swiftly grant our Petition for Declaratory Ruling and/or Waiver. Such decisive action will provide much-needed clarity, curb abusive litigation, and allow law-abiding ecommerce businesses to continue to innovate and provide valuable services to consumers without the threat of meritless lawsuits.
We stand ready to work with the Commission to finalize rules that reflect the realities of modern mobile communication and protect the vibrant ecommerce ecosystem from unwarranted legal threats.
