Ecommerce Innovation Alliance Fights Back Against “Quiet Hours” Shakedown Litigation
The Ecommerce Innovation Alliance (EIA) and other petitioners filed a petition today with the Federal Communications Commission (FCC) to address an alarming surge in frivolous litigation exploiting the Telephone Consumer Protection Act (TCPA). The petition seeks a declaratory ruling to confirm that individuals who provide prior express written consent to receive marketing text messages from a business cannot initiate litigation against the same business under the TCPA for messages received outside the hours of 8 a.m. to 9 p.m., the so-called “quiet hours.”
The petition also requests clarification or waiver of 47 C.F.R. § 64.1200(c)(1) regarding telephone solicitations sent to wireless devices without prior express written consent. The FCC has never addressed how a business can know the “called party’s location” when messages are delivered to a mobile phone subscriber. Thus, FCC rules currently impose an unworkable standard that warrants waiver or, at a minimum, clarification that reliance on a user’s area code to determine the time that messages can be sent is a compliant means of honoring the FCC’s quiet hours rule when prior express written consent has not been obtained.
“The Commission, continuing in the early days of Chairman Carr’s leadership, has done an admirable job fighting against illegal calls and texts, and here it can provide real value by affirming that the TCPA must not become a weapon for opportunistic litigators trying to profit off completely legal texts,” said former FCC Commissioner Michael O’Rielly. “This current state of affairs, where companies must choose between potentially crushing damages under the TCPA or cease providing valuable communications specifically requested by consumers, contravenes the best reading of Congress’s work and intent for the statute not to interfere with normal, expected, and desired communications that consumers have expressly consented to receive. I applaud EIA for leading the effort to stop this abuse.”
“The EIA is taking a stand against these abusive practices,” said David Carter, President & CEO of the EIA. “We are seeking relief from the FCC to protect law-abiding businesses from being forced to settle or incur significant resources of time and money to contest claims that are legally unsupportable.”
The petition specifically calls out the Jibrael Hindi Law Firm of South Florida, which has been actively soliciting plaintiffs on social media to file TCPA lawsuits based on a misapplication of the law. The firm has been inundating federal courts with more than 100 of these frivolous lawsuits, forcing businesses to settle or defend themselves at great cost. The EIA hopes that its Petition will provide companies with a tool to fight back and seek sanctions against the firm and its lawyers for continuing to file these cases without adequate investigation and legal basis.
The EIA is calling on the FCC to take prompt action to stop these abusive practices and protect businesses from being harmed by frivolous lawsuits. The petition is available for review on the EIA’s website here.
About the EIA
The EIA is a nonprofit trade association formed in 2023 that brings the ecommerce industry together to advocate for common sense policies that strengthen the ecommerce ecosystem while protecting consumer privacy, and which advocates for reforms to correct unintended consequences caused by laws and regulations.
