By Eric J . Troutman
WRITTEN CONSENT
CLARITY
Critical New TCPA Case Confirms Express Written Consent Cannot Be Obtained In A Recorded Phone Call Under E-SIGN — And I Told You So
By Eric J . Troutman
THE answer is no .
The question : Does the Czar ever get tired of being right ?
No . No I don ’ t .
The other question : Can you obtain TCPA-permissible express written consent via a disclosure read on a recorded call ?
No . No you cannot .
The reason ? The underlying agreement the consumer is accepting must be in the form of a written disclosure . Period . Full stop .
The signature can be captured orally . But the agreement must be in writing .
This seems straightforward , but it is actually really tough to glean from the regs , and many lawyers ( some pretty good ones ) have been wrong about this .
It has led to a massive state of confusion in the lead gen industry , with many companies swearing they can do what they simply cannot do .
And with the FCC ’ s new one-to-one rules coming into place ( and R . E . A . C . H . Standards v . 2.0 out in July ), clarity on this subject is absolutely critical . And yet there was — oddly — very little case law on this subject .
Enter the federal district court in Maryland .
In a new and very thoughtful decision , the court in Bradley v . Dentalplans . com , 2024 WL 2865075 ( D . Md . June 6 , 2024 ) walks through the applicable regs — which the court calls “ complex ” four different times — and arrives at the unsurprising conclusion that the Czar was right .
Here ’ s the background :
DentalPlans operates a “ direct-toconsumer marketplace ” that sells “ dental savings plans ” that allow customers to receive discounts on dental treatments . At least one of these dental savings plans is provided by Cigna .
Plaintiff placed a call to DentalPlans in November 2018 intending to sign up for a dental savings plan . The representative to whom Plaintiff spoke confirmed Plaintiff ’ s phone number and then asked Plaintiff if she consented to DentalPlans “ contact [ ing ] [ her ] with an automatic dialing system or a prerecorded message .”
The representative to whom Plaintiff spoke during this initial sign-up process utilized a sales script during the call . The script calls for DentalPlans ’ s agents to ( 1 ) “ collect [ ] the consumer ’ s name and telephone number ”; then ( 2 ) ask
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