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Retailers and other businesses sending marketing text messages are facing a surge in putative class actions alleging violations of the Telephone Consumer Protection Act’s (TCPA) time-of-day restrictions. These suits, often filed by a handful of plaintiff firms, claim that promotional texts sent before 8:00 a.m. or after 9:00 p.m. local time to residential subscribers violate the TCPA’s Do-Not-Call (DNC) regulations, even when the recipient has consented to the communications.

Recent judicial developments, however, provide powerful defenses to these claims. First, consent obtained through clear terms and conditions removes the messages from the definition of “telephone solicitation,” defeating TCPA claims outright. Second, the Supreme Court’s 2025 decisions in Loper Bright Enterprises v. Raimondo and McLaughlin Chiropractic Associates v. McKesson Corp. eliminated deference to agency interpretations, allowing district courts to hold that text messages do not constitute “telephone calls” under the plain language of the TCPA, and may eliminate the private right of action for text-based claims in those jurisdictions.

1. Consent Defeats Off-Hours (and DNC) Claims Entirely
The time-of-day prohibition applies only to “telephone solicitations.” The regulation expressly excludes any message sent with the recipient’s “prior express invitation or permission.” A signed written agreement (including clickwrap consent on a website or app) that authorizes contact at the provided number for marketing purposes satisfies this exemption. Once consent exists, the messages are not “telephone solicitations” under the TCPA, so the 8 a.m. to 9 p.m. rule and the National DNC Registry prohibition do not apply.

Courts have repeatedly recognized that valid consent is a complete defense to these claims, independent of the 31-day DNC scrub safe harbor or any other procedural compliance. The Fifth Circuit’s February 2026 decision in Bradford v. Sovereign Pest Control further reinforces the breadth of consent under the TCPA, confirming that the statute itself requires only “prior express consent” (oral or written) for many communications.

While the consent defense typically cannot be raised to defeat a plaintiff’s claim at the pleadings stage, there are other defenses and strategies that can also be considered to defend against these claims.

2. Post-McLaughlin Split: Many Courts Now Hold Texts Are Not “Telephone Calls”
The TCPA’s private right of action for DNC violations (§ 227(c)(5)) is limited to persons who receive “more than one telephone call” in a 12-month period. Because text messaging did not exist when the statute was enacted in 1991, and Congress used the distinct term “text message” in other TCPA provisions but not here, a growing number of district courts now hold, applying plain-text interpretation without agency deference, that texts are not actionable under § 227(c).

Recent examples (2025–early 2026) include multiple dismissals in the Sixth Circuit (N.D. Ohio), Seventh Circuit (C.D. Ill.), and Eleventh Circuit (N.D. Ga., N.D. Fla., and M.D. Fla.). While the split continues (and some Ninth and Fifth Circuit district courts still treat texts as covered), the trend strongly favors defendants in many venues.

3. Forum Shopping Persists but Forum-Selection Clauses Are Enforceable
Plaintiffs continue filing these cases in districts perceived as plaintiff-friendly. However, where consumers agreed to terms containing a choice-of-law and forum-selection clause, courts are required to enforce the clause. The key is ensuring that the terms and conditions or privacy policy on your website or app are properly updated, and that the consumer expressly consented to these terms, such as through a clickwrap banner on your website or app. With clear terms and proper consent, transfer from an unfriendly to a friendly jurisdiction or even dismissal is the likely outcome.

4. Recommendations for Proactive Compliance and Risk Mitigation
To minimize exposure to off-hours text claims and related TCPA litigation, we recommend the following straightforward steps:

• Implement or Strengthen Clickwrap Consent: Replace any browsewrap or passive “by using this site” language with clear, conspicuous clickwrap agreements. Require an affirmative “I agree” checkbox next to prominent language such as: “By checking this box and providing your mobile number, you consent to receive marketing text messages from [Company] at the number you provide, including messages sent at any time of day, and consent to the website’s or app’s terms and conditions and privacy policies.” Retain dated screenshots, metadata, and records of every consent.
• Review and Update Website/App Terms: Ensure terms contain: (a) robust consent language, (b) a class-action waiver and arbitration provision (where lawful), and (c) an enforceable forum-selection clause designating a friendly venue, such as jurisdictions where district courts are holding that text messages do not constitute “telephone calls” under the TCPA.
• Adopt Internal Off-Hours Policies: Even with consent, establish best-practice guidelines limiting non-requested marketing texts outside 8 a.m. to 9 p.m. local time unless the customer has expressly requested contact (e.g., order updates). Document any customer-initiated off-hours interactions.
• Maintain DNC Scrub and Record-Keeping Practices: Continue 31-day National DNC Registry scrubs and internal do-not-call list compliance as a best practice. These records can support safe-harbor arguments or demonstrate good faith even if consent is challenged.
• Monitor and Respond Promptly: Track revocation requests and honor them immediately, and implement real-time monitoring for incoming “STOP” texts and litigation demand letters.

Businesses that proactively secure unambiguous clickwrap consent and include strong forum-selection clauses are best positioned to defeat these claims at the pleading or summary-judgment stage. Depending on jurisdiction, many cases are being resolved favorably for defendants on the basis that “texts-are-not-calls.”

If you have received demand letters or complaints alleging off-hours text violations, or would like us to review your current website consent language and terms of use, please contact BMD Member Kyle Johnson at kajohnson@bmdllc.com.