Prior Express Written Consent: The TCPA's Highest Consent Standard

The TCPA has two consent standards. "Prior express consent" is the lower bar. "Prior express written consent" is the higher one — required for autodialed and prerecorded telemarketing calls or texts to cell phones. Most companies don't actually meet it. Understanding the standard is often the difference between a losing case and a winning one.

When Written Consent Is Required

The FCC requires prior express written consent for:

Autodialed or prerecorded telemarketing calls to cell phones
Autodialed or prerecorded marketing text messages to cell phones
Prerecorded telemarketing calls to residential landlines

Note the word "telemarketing." Informational calls (delivery updates, appointment reminders, fraud alerts) require only the lower "prior express consent" standard.

What the Written Consent Must Contain

Under 47 C.F.R. § 64.1200(f)(9), a valid written consent must:

Be in writing — a signed paper form or a compliant electronic signature (E-SIGN Act)
Clearly authorize the seller to deliver telemarketing calls or texts using an autodialer or prerecorded voice
Include the phone number to which calls may be placed
Include clear and conspicuous disclosures that: (a) by signing, the consumer authorizes the seller to deliver telemarketing calls using an autodialer or prerecorded voice; and (b) the consumer is not required to sign the agreement (directly or indirectly), or agree to enter into it as a condition of purchasing any property, goods, or services

All four elements are required. Missing any one — even the "you don't have to sign this to buy" language — invalidates the consent.

Common Reasons Consents Fail

Pre-checked boxes

The FCC and multiple courts have rejected pre-checked opt-in boxes as invalid — consent must be affirmative.

Consent buried in a Terms of Service

A link to a lengthy Terms of Service that mentions autodialed marketing in paragraph 47 is generally not "clear and conspicuous."

Consent to a different company

Consent given to Company A does not transfer to Company B, even if Company A shares your data with its "partners." The seller placing the call has to hold the consent.

Consent that predates the current phone number

If the number was reassigned to you, any prior consent held by the previous subscriber is worthless.

No autodialer/prerecorded disclosure

Consent to receive marketing "communications" is not consent to receive them via autodialer or prerecorded voice.

Consent conditioned on purchase

The "you are not required to sign this" disclosure isn't just a formality — its absence voids the entire consent.

Revocation Is Absolute

Even a valid written consent can be revoked. The FCC's 2015 order (and courts before and since) held that consumers can revoke consent by any reasonable means — verbally, in writing, or by replying STOP. Every call after revocation is a knowing violation worth up to $1,500.

Why This Matters for Your Case

Defendants in TCPA cases almost always argue "we had consent." Reading their consent form against the four requirements above is often enough to defeat that defense. Even minor gaps — a missing disclosure, a pre-checked box, a differently-named subsidiary — can be dispositive.

What to Save

Screenshots of any signup pages that arguably relate to the caller
Terms of Service or privacy policies you may have "accepted"
Any prior contact with the caller (or its parents/subsidiaries)
Records of when and how you revoked consent

Talk to a TCPA Attorney

If a company is claiming you consented to the calls, learn about our TCPA practice or contact us for a free case review. Consent defenses often collapse under the light.

FAQ

What qualifies as prior express written consent under the TCPA?

A written agreement, signed by the consumer, that clearly authorizes the specific seller to send telemarketing messages using autodialers or prerecorded voice, and that discloses the consumer is not required to consent as a condition of purchase.

Does clicking a website checkbox count as consent?

Only if the disclosure meets the FCC's specific requirements — clear identification of the seller, a conspicuous disclosure that consent isn't required for purchase, and a record of the consumer's affirmative click. Vague or buried checkboxes routinely fail.

Can I revoke consent?

Yes, at any time and by any reasonable method — voice, text reply, email, or letter. Every subsequent message is a separate violation.