Circuit Court Denies Appeal on Verbal Consent under the TCPA in Bradley v. Dentalplans.com

On April 4, 2025, the U.S. Fourth Circuit Court of Appeals DENIED the petition for interlocutory appeal in Bradley v. Dentalplans.com. This decision means that the case will proceed in the U.S. District Court for Maryland without the appellate court’s immediate review of the interlocutory (i.e., non-final) order.

In Bradley v. Dentalplans.com, the U.S. District Court for Maryland held in an interlocutory order that the written disclosures required for PEWC must be made in writing and trigger the E-SIGN Act’s “consumer disclosure” requirements, meaning businesses cannot rely on verbal consent obtained during phone calls, even if those calls are recorded, to satisfy PEWC for TCPA purposes.

Dentalplans.com will have the opportunity to appeal a final order from District Court; however, if the parties settle the case before a final order, the right to appeal any interlocutory or final orders related to the case are generally waived.

1. Must a seller obtain a signed written agreement from the consumer to make a telemarketing call?

Sellers must obtain “prior express written consent” to initiate telemarketing calls/texts using an automatic telephone dialing system (ATDS) and/or prerecorded messages. “Prior express written consent” requires that sellers make certain clear and conspicuous disclosures in writing to consumers as outlined in 47 CFR 64.1200(f)(9).

In addition, sellers must have written consent to make telemarketing calls to numbers on the National DNC Registry unless they have an established business relationship (EBR) with the consumer. See 47 CFR 64.1200(c)(2)(ii), (f)(15). Under federal law, sellers have an EBR with (1) current customers, (2) former customers (up to 18 months from the date of the last transaction), and (3) consumers who inquire about their goods/services (up to 3 months from the date of the inquiry). The EBR terminates once the consumer asks the seller to stop calling.

State laws are also a consideration. For example, sellers may need written consent to call numbers on an applicable state DNC list (several states have narrower EBR exemptions), call/text wireless numbers, or use an “automated system” (broader term than ATDS) to initiate calls. Sellers should consider these laws when determining whether they must have written consent to call consumers and, if so, how to obtain such consent in compliance with E-SIGN.

2. Must the seller provide specific written disclosures before obtaining a written signature?

E-SIGN’s “consumer disclosure” provision indicates that businesses must provide all disclosures required by law before obtaining an electronic signature. According to Bradley, this provision applies in the context of the TCPA. If so, businesses cannot provide the TCPA’s written consent disclosures verbally and must obtain “E-SIGN consent” (in a very specific manner) to provide them electronically.

3. What is required to obtain an electronic signature?

Once the business provides TCPA disclosures in writing (or electronically with the consumer’s consent), E-SIGN provides significant flexibility on how it may obtain an electronic signature. Depending upon the context, an electronic signature might include a digital signature on a tablet, checking a box to agree to online terms, clicking an appropriately labeled call-to-action button, or even providing verbal consent during a recorded call.

4. What should sellers do now?

Businesses that have previously obtained verbal consent should be aware that these consents are likely insufficient for PEWC purposes and should not be relied upon. It is strongly recommended to transition to an E-SIGN Act-compliant electronic process, especially if currently using a verbal process to collect PEWC, which may be achieved through a well-designed online form or an email or text flow that meets the necessary legal requirements under the E-SIGN Act and the TCPA.