Verbal PEWC Likely No Longer Sufficient for TCPA Compliance

As most businesses are aware, the Telephone Consumer Protection Act (TCPA) requires businesses to secure “prior express written consent” (PEWC) before making telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice in most circumstances. Several months ago, the FCC announced updates to the requirements for PEWC. In its order, the FCC highlighted that PEWC obtained electronically needed to meet all the requirements of the E-SIGN Act. With this emphasis, a question emerged: “May PEWC be validly obtained verbally on a recorded call?”

A federal court has now answered that question.

In Bradley v., the U.S. District Court for Maryland held that the written disclosures required for PEWC must be made in writing and trigger the E-SIGN Act’s “consumer disclosure” requirements. Unfortunately for the defense, the E-SIGN Act’s consumer disclosure requirements do not allow voice recordings to serve as valid “electronic record” for that purpose. Consequently, the court held, in no uncertain terms, “…the required written disclosure outlined in § 64.1200(f)(9)(i) of the TCPA cannot be provided via voice recording.”

This distinction is crucial because it means businesses can no longer rely on verbal consent obtained during phone calls, even if those calls are recorded, to satisfy PEWC for TCPA purposes. For businesses with verbal consent already on file, this means that those consents are now likely insufficient for PEWC purposes and should not be relied upon as such. If a business currently uses a verbal process to collect PEWC, it should strongly consider transitioning to a true E-SIGN Act-compliant electronic process such as using a properly designed online form or email flow.

Each business’s circumstances are unique. We can help! Contact us if you have questions about how to bring your PEWC process into compliance.


*  Hana Nishikawa contributed to this post.

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A Partner at M&S, Josh advises clients on a range of proactive and responsive matters, helping them achieve their business goals while complying with federal and state privacy and other consumer protection laws.

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