Maryland Court Challenges Over the Phone Consent

Under the Telephone Consumer Protection Act (TCPA), obtaining consent to make prerecorded calls or calls with an automatic telephone dialing system (ATDS) to consumers involves specific requirements to ensure compliance. The TCPA mandates that businesses must secure “express written consent” (EWC) from consumers before making such calls for marketing purposes. This process involves several key elements, some of which also tie in compliance with the E-SIGN Act:

1. Clear and Conspicuous Disclosure: The business must provide a clear and conspicuous disclosure that informs the consumer that they are consenting to receive ATDS or prerecorded calls.
2. Written Agreement: The consent must be in writing. The FCC has commented that this can include electronic forms of consent as permitted by the E-SIGN Act, such as through emails, online forms, text messages, or even via the telephone on a recorded line.
3. Specific Language: The written consent must explicitly state that the consumer authorizes the business to make automated or prerecorded calls. It must also inform the consumer that they are not required to sign the agreement as a condition of purchasing any goods or services.
4. Signature: The consumer must sign the agreement. The signature can be electronic, such as typing their name, clicking a checkbox, or any other method that complies with the E-SIGN Act.

A recent court ruling highlights the complexity of gaining consent under the TCPA while staying within scope of the E-SIGN Act. In the lawsuit Bradley v. DentalPlans.com, the plaintiff, Tamika Bradley, claimed that she received unsolicited prerecorded calls from DentalPlans.com, even though she had not provided the necessary express written consent required.

However, during an initial call, Bradley consented to receive automated calls from DentalPlans.com, which was recorded. The court considered whether the consent given via a recorded phone call could satisfy the TCPA’s requirement for EWC, as influenced by the E-SIGN Act.

Eventually, the court concluded that the E-SIGN Act does not allow written disclosures required by the TCPA to be provided via voice recording alone. Instead, such disclosures must be in a written format that can be retained and reviewed by the consumer.

This ruling is contrary to the FCC’s prior guidance, as companies have been gaining EWC via the telephone for years.  The case is currently under appeal.  This ruling provides a key distinction for businesses relying on EWC gained over the phone and recordings of that consent. Companies relying on oral or over the phone consent, or their recordings should familiarize themselves with this case and decide if a switch to more concrete methods under the E-SIGN Act, such as webforms or emails, is necessary.

CompliancePoint has a team of marketing compliance professionals who help ensure your marketing campaigns comply with the TCPA, TSR, Do-not-call rules, and any applicable state laws. Reach out to us at connect@compliancepoint.com to learn more about our services.