How can I tell whether a call needs written consent or only prior express consent?

The purpose of the message decides it. For an autodialed or prerecorded call to a wireless phone, consent must be in writing if the message is telemarketing, and it can be oral or written if the call is informational. Telemarketing means initiating a call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. A message that looks informational can still be treated as marketing. In Chesbro v. Best Buy, the court said neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.

Does an electronic signature count toward written consent?

It does, but only to the extent the electronic or digital signature is recognized as a valid signature under applicable federal law or state contract law.

Does having someone's phone number prove consent to call or text?

Giving the number can show consent for a non-telemarketing call, but a number's presence in someone's contact list cannot. For non-telemarketing and non-advertising calls, express consent can be demonstrated by the called party giving a wireless number to the person initiating the call, absent instructions to the contrary. A wireless number that merely sits in the contact list on a wireless phone does not, standing alone, show that the person whose number is listed has granted prior express consent.

Can a consumer take back consent, and what must the business do then?

A consumer can revoke consent by any reasonable method that clearly expresses a desire not to receive further calls or texts, and the caller cannot designate an exclusive means. When the called party uses one of the listed methods, the consent is considered definitively revoked and the caller may not send additional robocalls and robotexts. Requests made in any reasonable manner must be honored within a reasonable time not to exceed ten business days.

Is consent still good after the phone number is reassigned to someone else?

Consent from the previous subscriber does not carry over to the new one unless the regulatory safe-harbor conditions are met, because the TCPA requires the consent of the current subscriber (or non-subscriber customary user of the phone), not of the intended recipient of the call. The safe harbor is available only if the caller, bearing the burden of proof and persuasion, shows that it queried the database operated by the Administrator and that the call resulted from an erroneous response.

Can I rely on consent that a lead source or other intermediary says it collected?

Only if the consent was actually obtained, because an intermediary can only convey consent that has actually been obtained and cannot provide consent on behalf of another party. The Seventh Circuit applied a similar principle to fax advertising in Craftwood II v. Generac, holding that express permission is not transferable because the sender itself must procure it.

Lead GenerationTerm

Prior express consent

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

The government has not defined "Prior express consent" in a statute or regulation.

Based on our data, prior express consent is the called party's permission to receive an autodialed or prerecorded call or text, which must be in writing for telemarketing but, for informational calls, can be oral or written or shown by giving the wireless number to the caller absent instructions to the contrary. Source: FCC Declaratory Ruling and Order, released July 10, 2015, ¶ 9

Key legal rules

The duties below come from the TCPA, the FCC's rules, and its 2015 declaratory ruling, and the examples that follow show how they have been applied, so that a business can apply them to its own calling and texting:

It is unlawful to make any call, other than a call made for emergency purposes or with the prior express consent of the called party, using any automatic telephone dialing system or an artificial or prerecorded voice. Source: 47 U.S.C. § 227(b)(1)(A) If a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have obtained the consumer's prior express consent, and that consent must be in writing if the message is telemarketing but can be either oral or written if the call is informational. Source: FCC Declaratory Ruling and Order, released July 10, 2015, ¶ 9
The written agreement for telemarketing consent must include a clear and conspicuous disclosure informing the person signing that signing authorizes the seller to deliver telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice. Source: 47 C.F.R. § 64.1200(f)(9), (f)(15) The same disclosure must tell the signer that signing is not required, directly or indirectly, as a condition of purchasing any property, goods, or services. Source: 47 C.F.R. § 64.1200(f)(9), (f)(15)
A called party may revoke prior express consent, including prior express written consent, by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender. Source: 47 C.F.R. § 64.1200(a)(10)–(12) All requests to revoke prior express consent or prior express written consent made in any reasonable manner must be honored within a reasonable time not to exceed ten business days from receipt of the request. Source: 47 C.F.R. § 64.1200(a)(10)–(12) Callers or senders of text messages covered by the consent paragraphs may not designate an exclusive means to request revocation of consent. Source: 47 C.F.R. § 64.1200(a)(10)–(12)
If any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent, regardless of the means by which the caller obtained it. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)
The TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone). Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)
An intermediary can only convey consent that has actually been obtained, and cannot provide consent on behalf of another party. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Prior express consent is the carve-out that makes an autodialed or prerecorded call lawful, so whether the caller has it decides whether the call is permitted at all. Source: 47 U.S.C. § 227(b)(1)(A) The TCPA does not prohibit a business from communicating with its customer through robocalling; it merely requires businesses to obtain prior express consent from the consumer to receive such calls. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)

The duty falls on the caller because otherwise a consumer who never agreed to a call would have to track down the caller and opt out. The TCPA places responsibility on the caller alone to ensure that it has valid consent for each call made using an autodialer, artificial voice, or prerecorded voice. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015) The FCC has said the TCPA requires the opposite of an opt-out system, namely that consumers opt in before they can be contacted. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015) Because the caller also carries the burden of proving consent, records that track consent are what let it carry that burden when a call is challenged. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)

Enforcement examples

Chesbro v. Best Buy Stores, L.P. (rewards-program robocalls)

Chesbro v. Best Buy Stores, L.P.

Best Buy's robocalls to rewards-program members urged the listener to "redeem" Reward Zone points, directed him to a website where he could further engage with the program, and thanked him for "shopping at Best Buy." Source: Chesbro v. Best Buy Stores, L.P. Chesbro, the recipient, repeatedly and expressly asked not to be contacted. Source: Chesbro v. Best Buy Stores, L.P.

Outcome. The court reasoned that the calls encouraged the listener to make future purchases at Best Buy, and that neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context. Source: Chesbro v. Best Buy Stores, L.P. On that summary judgment record, the court found any assertion that Chesbro consented to the communications unpersuasive, and it held that the calls violated the TCPA and its implementing regulations. Source: Chesbro v. Best Buy Stores, L.P.

Gager v. Dell Financial Services, LLC (autodialed debt-collection calls to a cell phone)

Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013)

Dell argued that the content-based exemption permitting autodialed debt-collection calls precluded the plaintiff from withdrawing her prior express consent to the calls. Source: Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013)

Outcome. Dell's argument failed because the court determined that the debt-collection exemption was not applicable to calls made to cellular telephones. Source: Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013)

Craftwood II, Inc. v. Generac Power Systems, Inc. (faxed product advertising)

Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023)

The plaintiffs received multiple unsolicited fax transmissions advertising products the defendant sold. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023) The defendant moved to dismiss, arguing that the plaintiffs had consented through an agreement they had executed as members of an industry cooperative, under which the corporation agreed to provide its advertising programs. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023)

Outcome. The court determined that the agreement language was inadequate to support the motion to dismiss, noting that the defendant bears the burden of proof in establishing the express consent affirmative defense. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023) The court also reasoned that permission to receive a single faxed advertisement does not grant permission to send more faxes on an ongoing basis, unless the permission affirmatively and explicitly gives the advertiser permission to do so. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023) It added that express permission under the TCPA is not transferable, because it is the sender itself who must procure that permission. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023)

FTC v. DISH Network (prerecorded telemarketing calls to residential lines)

Complaint, FTC and State Plaintiffs v. DISH Network (TCPA counts)

The state plaintiffs' counts in the complaint alleged that DISH Network, either directly or through a third party acting on its behalf, engaged in a pattern or practice of initiating telephone solicitations to residential telephone lines in California, Illinois, North Carolina, and Ohio using artificial or prerecorded voices to deliver a message without the prior express consent of the called party, in calls that were not initiated for emergency purposes or exempted. Source: Complaint, United States v. DISH Network L.L.C.

Outcome. The complaint alleged that these violations were willful and knowing, and the state plaintiffs sought a permanent injunction and other equitable relief. Source: Complaint, United States v. DISH Network L.L.C.

Exposure

A caller without prior express consent can face a private suit, a state attorney general's suit, and an FCC forfeiture. The private right of action is available if otherwise permitted by the laws or rules of court of a State. Source: 47 U.S.C. § 227(b)(3)–(4) A private plaintiff can recover actual monetary loss or $500 in damages for each violation, whichever is greater. Source: 47 U.S.C. § 227(b)(3)–(4) If the court finds that the defendant willfully or knowingly violated the statute or regulations, the court may, in its discretion, increase the award to not more than 3 times that amount. Source: 47 U.S.C. § 227(b)(3)–(4)

A state attorney general who has reason to believe a person is engaged in a pattern or practice of telephone calls or other transmissions that violate the statute or its regulations may bring a civil action on behalf of the state's residents to enjoin the calls, to recover actual monetary loss or $500 in damages for each violation, or both. Source: 47 U.S.C. § 227(g) The FCC can separately hold a violator liable to the United States for a forfeiture penalty, and a violation committed with the intent to cause it carries an additional penalty not to exceed $10,000. Source: 47 U.S.C. § 227(b)(3)–(4)

Consent is the defendant's to prove. In Craftwood II v. Generac, the court noted that the defendant bears the burden of proof on the express consent affirmative defense and then found the cooperative agreement language inadequate to support dismissal. Source: Craftwood II, Inc. v. Generac Power Systems, Inc., 63 F.4th 1121 (7th Cir. 2023) In the DISH Network complaint, the state plaintiffs sought a permanent injunction for calls to residential lines that use a prerecorded voice without the prior express consent of the called party, and they alleged those violations were willful and knowing. Source: Complaint, United States v. DISH Network L.L.C.

FAQs

1.In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (FCC Declaratory Ruling and Order-Released July 10, 2015) (Excerpted). FCC Declaratory Ruling and Order, released July 10, 2015, ¶ 9See also Appendix 15-A. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (FCC Declaratory Ruling and Order-Released July 10, 2015) (Excerpted). In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015)
2.s227. 47 U.S.C. § 227(b)(1)(A)
3.In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (FCC Declaratory Ruling and Order-Released July 10, 2015) (Excerpted). FCC Declaratory Ruling and Order, released July 10, 2015, ¶ 9