The Ecommerce Innovation Alliance (EIA) continues our ongoing efforts to create a more predictable and fair legal environment for the ecommerce industry. On June 10, 2025, EIA’s President & CEO, David Carter, alongside former FCC Commissioner Michael O’Rielly, held two crucial ex parte meetings with key representatives from the Federal Communications Commission (FCC). These proactive discussions focused on our previously submitted Petition for Declaratory Ruling, aimed at combating abusive “quiet hours” litigation and securing much-needed clarity from the FCC.
The meetings involved top officials from both the Consumer and Governmental Affairs Bureau, including Mark Stone, Aaron Garza, Zac Champ, and Mika Savir, as well as the Wireless Telecommunications Bureau, with Acting Bureau Chief Joel Taubenblatt and Garnet Hanley in attendance. Our comprehensive presentation guided the conversations, highlighting the urgent need for action on behalf of law-abiding e-commerce businesses.
The Urgent Need for Clarity: Stopping Frivolous Litigation
At the heart of our discussions was the pressing issue of abusive litigation surrounding the Telephone Consumer Protection Act (TCPA) and its “quiet hours” rule. Despite decades of clear legal precedent, a single South Florida law firm has been actively soliciting consumers who have provided prior express consent to receive text messages, misleading them into believing that any message received outside of 8 AM to 9 PM is “unlawful” and a potential “payday”. Since November 2024, more than 230 such cases have been filed, with a staggering 98% originating from this one firm.
These meritless putative class actions are targeting businesses of all sizes, including small and mid-size e-commerce companies, imposing exceptionally painful costs that can significantly impact their operations. The EIA emphasized that while the law is clear and has been for over 20 years, an FCC Order reiterating existing law would serve as a powerful deterrent to this “shakedown litigation”. We urged the Commission to affirm that consumers who have provided prior express written consent have no legal basis to sue for text messages received outside of quiet hours, a straightforward application of the Commission’s definition of “telephone solicitation” that could be swiftly addressed by the Bureau.
Addressing the “Called Party Location” Conundrum for Mobile Phones
Beyond the immediate crisis of frivolous lawsuits, our meetings also delved into another critical aspect of our Petition: the challenge of applying the “called party location” standard for quiet hours to mobile phones. As location-based data is not accessible to third parties, businesses face an impossibility in complying with the current standard when prior consent is not required.
The FCC has never fully addressed how this standard should apply to mobile phones, especially given the significant changes in how Americans use their devices over the last two decades. The Wireless Bureau acknowledged that reasonable decisions to restrict access to consumer location data can indeed have unintended consequences. We underscored that this lack of clarity is exacerbated as some states begin to adopt their own mini-TCPA laws with differing standards, creating new compliance obstacles for businesses.
To equip businesses with the necessary tools for compliance, we encouraged the Commission to consider our proposal for a “safe harbor” based on area codes. While imperfect, this approach would provide much-needed clarity, or alternatively, the FCC could open a rulemaking proceeding to examine the issue more fully.
The EIA: Fighting for Ecommerce Businesses
These ex parte meetings are a testament to our commitment to educating regulators on the real-world impact of regulations and advocating for reforms that correct unintended consequences. We will continue to champion these critical issues with the FCC, striving for a fair balance that protects consumers while allowing e-commerce brands to thrive.
