What Makes an Electronic Signature Enforceable?

Signatures, and electronic signatures in particular, are a crucial element of the prior express written consent (PEWC) exemption to the general prohibition against using an Automated Telephone Dialing System (“ATDS”) to contact cellular numbers or numbers on the national Do-Not-Call Registry as set forth in the TCPA.

Under FCC and FTC rules, PEWC must be in the form of a written agreement that is signed by the consumer.  In most cases, the required signature is obtained electronically, via an online form submission process.  But how do you know whether an electronic signature obtained in that manner is legally valid?

The two main sources of law that govern electronic signatures in the United States are: (1) the Electronic Signatures in Global and National Commerce Act (E-Sign); and (2) the Uniform Electronic Transactions Act (UETA).

E-Sign is a federal law that applies to interstate commerce transactions (i.e., affecting parties from different states) and transactions between US and non-US parties. Agreements between parties from the same state are covered by the UETA, which has been adopted by every state except for New York, which has instead enacted similar legislation that essentially mirrors the UETA.

Both E-Sign and the UETA provide that an agreement may not be denied legal effect or enforceability solely because it is in electronic form and that if a signature is required, an electronic signature will suffice.  Both statutes define “electronic signatures” broadly: any sound, symbol or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.  Under this definition, an electronic signature is most likely to be enforceable if it can be shown to have met the following three requirements:

1. Authentication:  The signature must be capable of being “authenticated” or “deemed attributable” to an individual person. A signature is attributable to a signer if it was the act of that particular individual, which may be demonstrated by the context and circumstances in which it was provided.  Ideally, the person was required to enter a password or PIN to prove his or her identity as the signer.  In the absence of that, circumstantial evidence can be used to show that a particular consumer is the signer, such as collecting an IP address tied to that person.

2. Intention  An electronically signed agreement may not be enforceable if a party did not intend to sign it. Therefore, there must be some method employed to demonstrate the requisite intent, such as employing an unchecked box alongside a disclosure which clearly states that checking the box constitutes an electronic signature.

3. Association The signature must be “logically associated” with the record.  This requirement is relatively straightforward to satisfy when signing documents electronically via electronic signature platforms such as DocuSign.  In the case of an online form submission, it necessary to provide server metadata automatically collected during the website visit in which the signature was provided (IP address, time/date stamp, etc.), which can serve as an audit trail.

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Florida’s “Mini-TCPA” Amendment Becomes Law

On July 1st, the recent amendments to Florida’s telemarketing statutes discussed in a prior article were signed into law.   The amendments included with SB 1120 essentially transforms Florida’s existing telemarketing laws into a “mini TCPA,” by incorporating many of the same elements found in the Telephone Consumer Protection Act (including a private right of action with $500 statutory damages, which can be tripled for willful violations).

However, although it substantially mirrors the TCPA, the new Florida law includes some important distinctions from equivalent provisions found in the federal law, which include the following:

A Broader ATDS Definition:  The Florida law applies to “automated system[s] for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed.”   Many dialing platforms that may be excluded from TCPA coverage under the Supreme Court’s recent Facebook ruling will nevertheless qualify as automated dialing systems under this definition.

A Broad Definition of Covered Calls:  The new law makes no distinctions between calls, texts, or ringless voicemails.  Instead, it applies to “telephonic sales calls,” which are broadly defined as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”

Narrower Call Hours:  The new law restricts the hours in which a telephonic sales call can be placed, from 8 am to 8 pm (previously calls could be made until 9 pm).

Call Attempt Limitation The new law makes it unlawful to place more than three telephonic sales calls from any number to a person over a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the call.  Remember, a “telephonic sales call” includes calls, texts, and ringless voicemails.

Narrower Definition of Called Party The new law specifies that a “called party” is only the “regular user” of the phone (unlike the federal standard, which also includes the subscriber to the phone).

Like the TCPA, the new Florida law includes an exemption for calls placed with the prior express written consent (PEWC) of the called party, and defines PEWC in a similar manner as the applicable federal rules.  Under the Florida law, “Prior express written consent” means a written agreement that:

  • Bears the signature of the called party (including an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law).
  • Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the called party a telephonic sales call using an automated system for the selection or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail;
  • Includes the telephone number to which the signatory authorizes a telephonic sales call to be delivered; and
  • Includes a clear and conspicuous disclosure informing the called party that: (a) By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called; and (b)  He or she is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
So, if you are placing calls based upon the TCPA’s PEWC exemption, it should also apply to the  PEWC standard established by the new Florida law.

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