Earlier this summer, the U.S. District Court for the District of Maryland denied a defendant’s motion for summary judgment in a case arising under the Telephone Consumer Protection Act (TCPA), finding that the defendant failed to show that it received prior express written consent for the telemarketing calls at issue.

Case Background

DentalPlans operates a “direct-to-consumer marketplace” that sells “dental savings plans” that allow customers to receive discounts on dental treatments. Years earlier, the plaintiff called DentalPlans, intending to sign up for a dental savings plan. During that call, the plaintiff consented to receiving calls.

As the plan’s expiration approached, DentalPlans began placing calls to the plaintiff’s phone using a prerecorded voice to inform her that her plan was expiring soon and offering renewal. However, the plaintiff chose not to renew her plan. After the plan expired, however, DentalPlans continued placing prerecorded calls to the plaintiff, which it characterized as “winback” calls, attempting to “win back” the plaintiff’s business.

The plaintiff grew increasingly frustrated with the prerecorded calls from DentalPlans and filed a class action lawsuit, alleging violations of the TCPA for placing unauthorized telemarketing calls to her and the proposed class of former customers. DentalPlans moved for summary judgment, claiming the plaintiff lacked standing and had provided prior express consent and prior written express consent to receive the calls.

Court’s Analysis

Initially, the court easily disposed of DentalPlans’ challenge to the plaintiff’s standing, noting that merely receiving unwanted phone calls is an actual and concrete injury under the TCPA. However, the court did distinguish between the calls placed before and after the plan expired, noting that telemarketing calls require prior express written consent of the called party: “While a call utilizing a prerecorded voice that does nothing more than inform an existing customer that their plan will soon expire and can be renewed might fall outside of the definition of telemarketing under the TCPA, . . . the winback calls are different.”

The court then analyzed the relevant provisions of the TCPA’s implementing regulations and the E-SIGN Act, explaining how the “seemingly straightforward” question of what qualifies as “prior express written consent” under the TCPA becomes somewhat complex:

. . . the court now attempts to boil these rules down to a digestible set of requirements. In order to satisfy the “prior express written consent” standard of the TCPA, a party must show, at a minimum, (1) an agreement, (2) a signature (that the signatory intended to function as a signature), and (3) “clear and conspicuous” disclosures about the content of the agreement and that the consumer need not sign the agreement. Each of these requirements must be in writing. If a non-electronic writing is provided, nothing additional is required. If the writings are electronic, however, it must be decided whether the additional requirements of the E-SIGN Act’s “consumer disclosures” section apply to the disclosures required by the TCPA—specifically the “consumer disclosures” section’s prohibition on providing required disclosures via voice recordings.

Here, the court ultimately held that the E-SIGN Act requirements for “consumer disclosures” did apply. As the disclosures were not provided to the plaintiff in writing, her voice recording could not constitute a valid written signature. Thus, the court found a genuine question of material fact regarding the plaintiff’s intent to sign the agreement and denied summary judgment.

Significantly, the court did find that class certification was appropriate for the class of consumers who received winback calls.

Key Takeaway

Bradley v. DentalPlans.com illustrates one of many difficulties in engaging with consumers electronically – specifically, the additional disclosure required for obtaining a consumer’s prior express written consent under the TCPA.