ESIGN and TCPA Consent Compliance

This article by DLA Piper explains how companies need to handle electronic consent when communicating with consumers, especially under the Telephone Consumer Protection Act (TCPA). It highlights the importance of following the Electronic Signatures in Global and National Commerce Act (ESIGN) rules for electronic disclosures and consent.

The article refers to a court case, Bradley v. Dentalplans.com, which helps clarify these requirements. In this case, a dental plan company continued to make prerecorded calls to a consumer after her plan expired. The company argued that the consumer's verbal consent was enough for these calls, but the court disagreed. The article explains that, under the TCPA, any telemarketing or advertising calls made with automated systems need prior express written consent from the consumer. This consent must include specific disclosures and be in a written form, which can be electronic.

The article explains that ESIGN allows electronic records and signatures to be considered "in writing," as long as certain conditions are met. For example, businesses must provide clear consumer disclosures about the use of electronic records and obtain explicit consent. The court case highlighted that these disclosures cannot be provided via voice recording, emphasizing the need for a written agreement signed by the consumer.

The article also discusses how the Federal Communications Commission (FCC) supports this view, stating that electronic consent, such as through email or text message, is valid if it complies with ESIGN. The article underscores that businesses must ensure all TCPA-required disclosures are included in the written agreement, which can be in electronic form but must follow ESIGN rules.

In summary, the article provides a clear roadmap for businesses on how to comply with both ESIGN and TCPA when obtaining electronic consent from consumers. It emphasizes the need for written agreements, proper disclosures, and the importance of following legal guidelines to avoid issues like those in the Bradley case.