Prior express written consent
written consent / marketing text consent / TCPA consent / opt-in for calls and texts
Prior express written consent is the standard the FCC's rules require before a business sends marketing calls or texts using an autodialer or an artificial voice. It has to be a signed agreement naming the phone number, and the rule says a person cannot be required to sign it as a condition of buying anything.
The definition is precise, which is helpful, because most arguments about consent come from paraphrasing it. The rule describes 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, and that names the telephone number those messages may go to. A general willingness to hear from you is not that. Neither is a number typed into a form with nothing attached.
Two disclosures have to be in the agreement, clear and conspicuous. The first is that signing authorises the seller to send those calls. The second is the one businesses trip over: the person is not required to sign, directly or indirectly, or to enter the agreement as a condition of purchasing any property, goods or services.
Signatures are not the obstacle people expect. The rule says signature includes an electronic or digital form, to the extent that form is recognized as a valid signature under applicable federal law or state contract law. So a properly built web form can carry this. The question is what the form says, not whether there is ink.
This has become more relevant rather than less. In February 2024 the FCC confirmed that the restrictions on artificial or prerecorded voice cover current AI technologies that resemble human voices, and stated that where those calls carry an advertisement or telemarketing, the rules require prior express written consent. A newer tool does not come with a lighter standard.
In practice
The common failure is a checkout or enquiry form where agreeing to marketing messages is bundled into completing the purchase. Under the rule the agreement has to say the opposite, that signing is not required in order to buy. A tick box that carries neither disclosure, and no record of which number it authorized, is difficult to present later as consent.
Not the same as
- Prior express consent
- A lower standard used for some non-marketing calls. Advertising and telemarketing are the ones the written standard covers.
- An unsubscribe link
- That handles withdrawal. This is about what had to exist before the first message.
Why it matters to you
Consent is what a contact list is actually worth. A list without it is not a marketing asset, it is a liability with phone numbers in it, and the exposure sits with the seller, which the rule defines as the party the calls are made on behalf of. Buying leads does not move that. Before any campaign of calls or texts, the question worth answering is whether you could produce the agreement for a given number if somebody asked.
What to ask or check
- 01Can we produce the signed agreement for a number, with its date and wording?
- 02Does our wording say the person is not required to agree in order to buy?
- 03For bought lists, who holds the consent record, and can we see one?
What people get wrong
That a tick box is enough on its own. The rule asks for an agreement that names the number and carries both disclosures, one of which is that agreeing cannot be made a condition of buying.
Red flags
- Marketing texts going to numbers collected by a form that carried neither required disclosure.
- A checkout that will not complete unless the customer agrees to marketing messages.
- A bought list described as consented, with no agreement available for any individual number.
Who owns it
The seller, which the rule defines as the party on whose behalf the call or message is initiated. Using an outside agency or a bought list does not move it.
Where you will see it
On web forms and checkouts, in lead-list contracts, and in any proposal for an outbound calling or texting campaign.