What counts as prior express written consent under the TCPA?
A written agreement, signed (electronic is fine), that clearly authorises the named seller to send marketing calls or texts using an autodialer or prerecorded voice to a specific number, with a statement that consent is not a condition of purchase.
Prior express written consent is defined in 47 C.F.R. § 64.1200(f). It is an agreement, in writing, bearing the signature of the person called, that clearly authorises the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, to a specific telephone number. The disclosure must be clear and conspicuous, and the person must be told that consent is not a condition of purchasing anything. Electronic signatures count. This is the standard for marketing calls and texts to cell phones made with automated systems, and it is the standard most demand letters turn on.
The four elements
- A signature, attributable to the person, which can be a checkbox, a typed name or a recorded verbal agreement.
- A clear and conspicuous disclosure that the person agrees to receive marketing calls or texts, made with an automated system or a prerecorded voice, from the named seller.
- A statement that agreeing is not a condition of purchase.
- The specific number.
A record with all four, plus a timestamp and the page or script as the person saw it, is a defence to the listed call. A record missing one is an argument. Most of those records come from a form; see does a web form count as consent for marketing calls and texts.
The other consent
Non-marketing automated calls to a cell phone need only prior express consent, which can be as little as the person giving you their number. Calls to numbers on the National Do Not Call Registry need written consent or an established business relationship within the rule's limits. Most demand letters concern marketing, so the written standard applies.
Revocation
Consent can be withdrawn by any reasonable means: a STOP reply, a spoken request on a call, an email. Under the FCC's 2024 rules the business must honour a revocation within ten business days. Consent that was valid when given and revoked before the call is no consent. See we had consent, does that end the claim.
People also ask
Does an electronic signature count?
Yes, under the E-SIGN Act: a checkbox, a typed name or a recorded verbal agreement, as long as it is attributable to the person and recorded.
Does consent to "partners" cover my business?
Weakly. Courts have often found consent to unnamed partners insufficient. The FCC’s one-to-one consent rule, which would have required the seller to be named individually, was vacated by the Eleventh Circuit in January 2025, but naming the seller remains the safest practice.
Is consent for one number consent for the person’s other numbers?
No. Consent attaches to the number given. A number reassigned to someone else carries no consent, and the FCC’s Reassigned Numbers Database is the safe harbour for checking.