So REACH recently submitted a hard-hitting comment in support of an effort to shut down frivolous lawsuits arising from out-of-time-limitation SMS messages.
These messages generally arise when a consumer travels from one location to another and the caller is not aware of the changed location and sends messages based upon area codes that end up being inaccurate because, you know, people move around.
R.E.A.C.H.’s comment is laser focused on the language of the CFR that limits claims related to out-of-time messages to “solicitations” and the definition of “solicitations” looks only at messages sent without prior express invitation or permission. It follows that a message sent with invitation or permission may be sent outside of the TCPA’s timing limitations.
Simple.
But not so fast.
Hindi– the guy behind hundreds of recent TCPA class actions against small businesses and who also just bragged about buying a 15 seat private jet on social media–counters that the CFR is unclear whether the permission was to be general or specific in nature.
In his view of the world a consumer that gives permission to receive text messages from a business impliedly gives only limited consent; i.e. consent to receive texts WITHIN the timing limitations of the TCPA. While a consumer may ask for texts outside of the timing window such consent must be SPECIFIC as to the timing component.
Here is how he frames the issue:
The undersigned does recognize that text messages sent with “prior express invitation or permission” are not “telephone solicitations” under the TCPA and, thus, do not fall within the ambit of the Quiet Hours Provision. See 47 U.S.C. § 227(a)(4); see also 47 C.F.R. § 64.1200(c)(1). However, it bears repeating that the instant issue lies not in general invitation or permission, but rather the scope of such invitation or permission. Senders of text messages—who are in the best position to clarify the scope of invitation or permission—often leave the detail of message timing unaddressed and ambiguous by and through their own opt-in language. Indeed, in the undersigned’s experience, almost no sender of text message solicitations cares to obtain a consumer’s prior express invitation or permission to send texts “before 8 a.m. or after 9 p.m.” or at “any time.” This is a major issue for consumers, who reasonably believe they consent to messages at objectively normal hours but are instead bombarded with texts during objectively invasive hours.
Almost all consumers complain about quiet hours messages, even when they have given general express invitation or permission to receive texts. These consumers, including those without a legal background of any kind, often point out that they did not specifically consent to receiving messages “before 8 a.m. or after 9 p.m.” or “any time.” The average person is confused or, in some cases, outright enraged when they merely provide a company with their residential phone number and start receiving text messages in the middle of the night. Even Petitioners acknowledge this reality, noting that after-hours text messages can cause nuisance or annoyance for consumers.
Interesting, no?
Importantly general vs. specific consent may have BIG consequences in other TCPA arenas as well. For instance if the courts or “delete delete delete” proceedings dismantle express consent rules in the CFR we will be back to determining what “clearly and unmistakably stated” consent means for all purposes– and that might mean consumers must specifically request to hear from a caller “using an autodialer” or “using prerecorded calls” or “using AI.”
While that is not much of a shift from today’s practice for telemarketers it is a MASSIVE shift for informational calling where such specific consent is not required. So there may be bigger issues afoot here.
Regardless I thought the response here was interesting enough to merit a quick blog.
Full response here: Jibrael Hindi