TCPA Consent: What Prior Express Written Consent Requires

Two kinds of consent, and when each applies

The TCPA uses the word consent in two different ways. Which one a caller needs depends on what the call is for and how it was made.

“Prior express consent” is not defined in the statute. The Eleventh Circuit said in January 2025 that it carries its ordinary meaning: “consent is a willingness for certain conduct to occur,” given “clearly and unmistakably.” Whether giving a business your number counts as consent to a particular call depends on what you gave it for and what the call was about.

“Prior express written consent” is defined in the FCC’s rule, and the definition is strict.

What the written agreement must contain

Under 47 CFR 64.1200(f)(9), prior express written consent is “an agreement, in writing, bearing the signature of the person called” that:

1. Clearly authorizes the seller to deliver advertisements or telemarketing messages using an autodialer or an artificial or prerecorded voice.
2. Identifies the telephone number to which the signer authorizes those messages.
3. Includes a clear and conspicuous disclosure telling the signer that signing authorizes such calls.
4. Tells the signer they are not required to sign, directly or indirectly, “as a condition of purchasing any property, goods, or services.”

The signature may be electronic “to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law” (64.1200(f)(9)(ii)). A checked box and a submit button on a website can qualify. A buried line in the terms and conditions, with no clear disclosure next to the button, is a weaker case for the caller.

“Clear and conspicuous” has its own definition: a notice “apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures” (64.1200(f)(3)).

The one-to-one consent rule was struck down

In 2023 the FCC adopted a rule that would have limited each written consent to one seller at a time and to calls “logically and topically associated” with the website where you gave it.

On January 24, 2025, the Eleventh Circuit vacated that part of the FCC’s order in Insurance Marketing Coalition v. FCC. The court held the FCC exceeded its authority by adding requirements the ordinary meaning of consent does not include. The FCC formally conformed its rules on August 29, 2025 (90 FR 42137). Our report on the one-to-one ruling covers the case.

What that means for you: a single consent form can still name several sellers. But each seller that robocalls or autodials you for marketing must be covered by an agreement that meets every element of (f)(9). A form that lists “our marketing partners” by hyperlink, without naming the caller where you signed, invites a challenge.

Two groups get a lower bar for sales-type robocalls

The written-consent rule in 64.1200(a)(2) has two carve-outs. A tax-exempt nonprofit calling cell phones needs only prior express consent, not written consent. So does a HIPAA “covered entity” or its “business associate” delivering a “health care” message, as those terms are defined in 45 CFR 160.103. Both still need some consent before robocalling a cell phone, and both must honor opt-outs.

The FTC’s Telemarketing Sales Rule adds its own layer for prerecorded sales calls. A seller may play a prerecorded sales message only if it got your express written agreement “only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls to such person” (16 CFR 310.4(b)(1)(v)). The agreement must name “a specific seller.”

Consent for the Do Not Call Registry is different

If your number is on the National Do Not Call Registry, a live sales call needs more than a vague opt-in. The FCC’s rule requires “a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed” (64.1200(c)(2)(ii)). The FTC’s Telemarketing Sales Rule uses nearly the same test (16 CFR 310.4(b)(1)(iii)(B)(1)).

The other way around the Registry is an established business relationship: a purchase from that seller in the last 18 months or an inquiry in the last 3 months (64.1200(f)(5)). Our Do Not Call law page covers those exceptions.

Live sales calls are a different question

Written consent is about robocalls: autodialed calls and texts, and prerecorded or artificial voice calls. A live salesperson dialing a number that is not on the Do Not Call Registry needs no consent under the TCPA’s robocall provisions. That caller still has to respect calling hours, identify itself, and honor a request to be put on its company do-not-call list within ten business days (64.1200(d)). So if a company says “you consented,” the first question is what kind of call it made. The answer tells you which consent standard, if any, applies.

Consent ends when you revoke it

Consent is not permanent. You can revoke it “using any reasonable method to clearly express a desire not to receive further calls or text messages” (64.1200(a)(10)). A caller must honor your request within ten business days. The caller also cannot make you use one exclusive method, although a proposal on the FCC’s September 30, 2026 agenda would change that. The details are on our page about revoking consent.

Consent stays with the number, not the person

Phone numbers get reassigned. If the person who gave consent gave up the number and you got it, their consent does not cover you. FCC rules set up a reassigned numbers database that callers can check. A caller that queries the database and gets a wrong answer has a narrow safe harbor, and it bears “the burden of proof and persuasion” to use it (64.1200(m)). Wrong-number robocalls are a recurring problem. See our page on wrong-number robocalls.

Who has to prove consent?

Consent is the caller’s defense, so expect the caller to point to a record: the web form, the timestamp, the IP address, the disclosure text you supposedly saw. When a company claims you “opted in,” ask for that record in writing. Common problems with lead-generation consent include:

• The form was filled out with your number by someone else.
• The disclosure did not name the company that called.
• The disclosure did not say you could decline and still buy.
• There is no signature at all, only a claim that you “agreed” on a call.
• You revoked consent, and the calls continued past ten business days.

Exceptions that need no consent

• Calls made “for emergency purposes,” meaning “in any situation affecting the health and safety of consumers” (64.1200(f)(4)).
• Certain free-to-end-user calls and texts to cell phones: package delivery notices, bank fraud and data-breach alerts, and health care messages such as appointment reminders and prescription notices. Each comes with limits on number, length and content, and must offer an opt-out (64.1200(a)(9)).
• Non-commercial and some informational prerecorded calls to home lines, capped at three calls in any 30-day period (64.1200(a)(3)(ii) through (iv)).

What to do if a company says you consented

Do not argue on the phone. Ask the caller, in writing, for a copy of the consent record, including the date, the website, and the disclosure language. Keep calling logs and screenshots in the call evidence log. If the record they produce is missing any of the (f)(9) elements, or names a different seller, that gap may be the core of your claim. Our guide on suing a telemarketer explains how consent disputes are usually resolved.