Black Friday Text Campaigns: A Pre-Send TCPA Checklist

Before a Black Friday or holiday text campaign goes out, check four things: that every number on the list has the written consent automated marketing texts require, that no message is scheduled to land before 8 a.m. or after 9 p.m. in the recipient’s time zone, that STOP replies from earlier campaigns have been processed, and that old numbers haven’t been reassigned to strangers. Volume is what turns a small compliance gap into a class action. Companies that can document all four checks have better defenses when a claim arrives.

Does every number on the holiday list have the right consent?

Check the consent type, not just the presence of a number.

Automated marketing texts to cell phones require “the prior express written consent of the called party,” under 47 C.F.R. § 64.1200(a)(2). As of this writing, the definition is the restored one in § 64.1200(f)(9): “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice,” together with the number. The 2023 one-to-one version was vacated by the Eleventh Circuit and never took effect.

Holiday lists tend to be built by merging. The order-confirmation list, the loyalty list, and last year’s sweepstakes entrants all end up in one file. Only some of those people signed a marketing consent. I’d tag every record with its consent source before the merge, and I’d suppress any number that has only transactional consent.

One caveat on the federal rule: the written-consent requirement applies to autodialed or prerecorded marketing. An autodialer requires “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” under Facebook, Inc. v. Duguid, 592 U.S. 395 (2021). That’s a real defense. Don’t build a holiday campaign around it. Some state laws reach more equipment, and the Do Not Call rules don’t depend on equipment at all.

Are any messages scheduled to land during quiet hours?

The federal rule bars telephone solicitations “before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location),” under § 64.1200(c)(1). The FCC applies its Do Not Call rules, including that one, to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” to the extent described in its 2003 order, under § 64.1200(e).

Holiday campaigns create two timing traps. The first is the queue. A platform that throttles a million messages over several hours can start at 7 p.m. Eastern and still be sending at 9:30. The second is time zones. A send scheduled for 7 p.m. in New York lands at 4 p.m. in Los Angeles, which is fine, but a midnight flash sale from a West Coast brand reaches Eastern numbers at 3 a.m.

Some states are stricter. Florida bars a commercial telephone solicitation call “before 8 a.m. or after 8 p.m. local time in the called person’s time zone,” and more than three in 24 hours on the same subject, under Fla. Stat. § 501.616(6). Oklahoma bars commercial solicitation calls “before 8 a.m. or after 8 p.m. local time in the called person’s time zone,” and caps them at three in 24 hours on the same subject, under its Telephone Solicitation Act. I’d set a hard stop well before 8 p.m. local time for the whole campaign and build state exceptions into the scheduler.

The federal quiet-hours rule protects a “residential telephone subscriber,” and private claims over texts now face a separate defense. In Jones v. Blackstone Medical Services, LLC, No. 1:24-cv-01074 (C.D. Ill. July 21, 2025), the court held that “Section 227(c)(5) of the TCPA does not regulate text messages,” and in Davis v. CVS Pharmacy, Inc., No. 4:24-cv-477 (N.D. Fla. Aug. 26, 2025), the court concluded that a text message isn’t a telephone call under § 227(c)(5) and dismissed the claim on the merits Not every court agrees. In Wilson v. MEDVIDI Inc., No. 5:25-cv-03996 (N.D. Cal. Oct. 7, 2025), the court read “telephone call” in § 227(c) to cover the text messages at issue, though it dismissed the complaint on other grounds with leave to amend. Jones is on appeal to the Seventh Circuit. These are district court rulings that bind no other court, so I’d keep scrubbing and honoring quiet hours for texts while raising the argument in any texts-only Do Not Call case.

Have STOP replies from earlier campaigns been processed?

They have to be, within ten business days, and the rules changed this year.

Since April 11, 2025, consumers may revoke consent “by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender,” under § 64.1200(a)(10). Seven reply words, including stop and unsubscribe, count automatically, and other wording counts if “a reasonable person would understand those words to have conveyed a request to revoke consent.” Requests must be honored “within a reasonable time not to exceed ten business days from receipt of such request,” and, under the same rule, senders “may not designate an exclusive means to request revocation of consent.”

A holiday campaign often reaches people who replied to a September or October promotion with something other than STOP. A reply asking you to quit texting, in any words, counts. Before the big send, I’d have someone review free-text replies from the last 90 days, not just keyword opt-outs.

The rule allows one confirmation text. Under § 64.1200(a)(12), “If the confirmation text is sent within five minutes of receipt, it will be presumed to fall within the consumer’s prior express consent.” At holiday volume, confirm that the platform still sends that text within five minutes and includes no promotion.

One piece of the revocation rule is delayed. In DA 25-312, the FCC’s Consumer and Governmental Affairs Bureau put off until April 11, 2026 the requirement to treat a revocation in response to one type of message “as applicable to all future robocalls and robotexts from that caller on unrelated matters.” Treat that date as part of next year’s planning.

Has anyone checked for reassigned numbers?

An old list is a list of strangers. Phone numbers get disconnected and reassigned, and the new user never consented.

The FCC offers a safe harbor for callers who check the Reassigned Numbers Database. Under § 64.1200(m), a caller that had consent from the prior subscriber isn’t liable for a call to a number that had been reassigned if, among other things, it queried the database, received a response of “no,” and the call “was the result of the database erroneously returning a response” of no. The caller bears “the burden of proof and persuasion.”

For a list that includes customers who haven’t bought anything in a year or more, I’d run it through the database before the holiday send and keep the query records. It’s cheap protection against wrong-number claims, which don’t depend on whether your original consent was good.

What about state pre-suit notice rules?

Florida has one worth knowing. Before suing over text solicitations under its Telephone Solicitation Act, the called party must reply STOP, and may sue “only if the called party does not consent to receive text messages from the telephone solicitor and the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice,” under Fla. Stat. § 501.059(10)(c). A company that processes STOP replies fast takes that claim off the table. Our post on Florida text claims covers the rest of the statute.

Holiday-campaign claims and the defenses that answer them

The damages rules are in 47 U.S.C. § 227, subsections (b)(3) and (c)(5). The private Do Not Call claim requires “more than one telephone call within any 12-month period by or on behalf of the same entity.”

If a holiday campaign draws a demand letter

Volume means the campaign records are the case. The firm’s TCPA litigation defense page explains how a single demand can become a class action. Start with these steps:

1. Put a litigation hold on the campaign’s send logs with time stamps and recipient time zones, the platform’s queue data, and the consent record and source for each number.
2. Export opt-out records, including free-text replies, with the date received and the date processed.
3. Pull National Do Not Call Registry scrub records and any Reassigned Numbers Database query results, with dates.
4. Collect the texting platform contract, the campaign brief and message copy, and the list-building records showing which lists were merged.
5. Speak with a lawyer before answering the demand, texting the person, or offering a coupon or payment to settle.

Holiday texting questions from marketing teams

Can we text customers who bought from us last holiday season?

Only if they gave written consent to marketing texts, assuming the texts are automated. A purchase alone supplies an established business relationship for Do Not Call purposes, for 18 months, under § 64.1200(f)(5). It doesn’t supply the signed written consent the autodialer rule requires.

Is one late-night text worth a lawsuit?

A single text can’t support a private quiet-hours claim under § 227(c)(5), which requires more than one call in 12 months from the same entity. A campaign that sends three reminders after 9 p.m. is a different story, which is why the scheduler deserves as much attention as the copy.

Should our holiday texts say how to opt out?

Yes. A line telling recipients to reply STOP to opt out is good practice. Just don’t treat it as the only way. Under § 64.1200(a)(10), senders can’t designate an exclusive means of revocation, so free-text requests count too.

When a holiday campaign leads to a lawsuit

If your company has been sued over holiday marketing texts, the consent sources, send times, and opt-out logs for the campaign usually decide which claims survive and whether a class can be certified. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving high-volume promotional texts. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version as of October 28, 2025. The FCC’s revocation waiver is DA 25-312 (Apr. 7, 2025).

The state laws are Oklahoma’s Telephone Solicitation Act of 2022 and Florida Statutes § 501.059. The court decision is Facebook, Inc. v. Duguid, 592 U.S. 395 (2021).

This post is general information about the Telephone Consumer Protection Act and related laws as of October 28, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.