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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
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Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
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Find Your Next Job !
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
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2025 National Law Forum, LLC