A U.S. District Court for the District of Maryland recently denied summary judgment in a case under the Telephone Consumer Protection Act (TCPA), finding that the defendant failed to show it received prior express written consent for telemarketing calls.

In Bradley v. Dentalplans.com, the plaintiff signed up for a dental savings plan over the phone. During the call, the defendant’s representative, using a standard sales script, asked for consent to contact the plaintiff using an automatic dialing system or prerecorded message. The plaintiff requested clarification about the purpose of the calls and the representative stated they were to keep her updated with plan information and would only come from the defendant. The plaintiff consented to receive the calls.

As the plan’s expiration approached, the plaintiff informed the defendant she did not want her plan to auto-renew. The defendant then began placing calls to the plaintiff’s phone using a prerecorded voice to inform her that her plan was expiring soon and offering renewal. After her plan expired, the defendant purportedly continued placing prerecorded calls to the plaintiff, referred to as “winback” calls, trying to win back her business.

The plaintiff filed a class action lawsuit, alleging the defendant violated the TCPA by placing unauthorized telemarketing calls to her and the proposed class of former customers. The defendant moved for summary judgment, claiming the plaintiff lacked standing and had provided prior express consent and prior written express consent to receive the calls.

First, the court found the plaintiff had standing because receiving unwanted phone calls is an actual and concrete injury under the TCPA. Next, the court distinguished between calls placed before and after the plan expired, noting that only telemarketing calls require prior express written consent of the called party. The court found the calls placed before the plan expired might not be considered telemarketing, but the calls after the plan expired were, because they aimed to induce the purchase of a new plan.

The court then engaged in a detailed analysis of the TCPA regulations and the E-SIGN Act, acknowledging the complexity of both:

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.

In short, if a non-electronic writing is provided, nothing further is required. However, if the writings are electronic, the court must decide whether the additional requirements of the E-Sign Act’s “consumer disclosures” sections apply, specifically the “consumer disclosures” section’s prohibition on providing written disclosures via voice recordings. Here, the court ultimately held that the “consumer disclosures” section of the E-SIGN Act did apply. Because the disclosures were not provided to the plaintiff in writing, her voice recording could not constitute a valid written signature. The court also found a genuine question of material fact regarding the plaintiff’s intent to sign the agreement, denying summary judgment.

Class certification was deemed appropriate for the class of consumers who received winback calls.