Prior Express Written Consent: TCPA Rules

The short answer

Prior express written consent is the strongest consent in the TCPA rules: a signed agreement that lets a named business send marketing calls or texts, by autodialer or recorded voice, to one phone number. If you text promotions from a platform or run a dialer for sales, this is the consent your list has to be built on.

Rules read 2026-10-22

The definition, element by element

The whole requirement is one sentence of the FCC's rule and two disclosures under it. Here is the sentence:

“an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered”

47 CFR § 64.1200(f)(9)

The agreement must then disclose, clearly and conspicuously, that “(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services” (§ 64.1200(f)(9)(i)). Taken apart, that is eight things a form has to get right:

The elements of prior express written consent under 47 CFR § 64.1200(f)(9)
The rule's words	What it means on a form	Paragraph
An agreement, in writing	A record the person agreed to, kept in a form you can show later	(f)(9)
Bearing the signature of the person called	Ink, a ticked box, a click, a typed name, a keypress or a reply text, if it is a signature under E-SIGN or state law	(f)(9), (f)(9)(ii)
Clearly authorizes the seller	The business on whose behalf the call or text goes out, named so the person knows who will contact them. “Seller” is defined at (f)(10)	(f)(9)
Advertisements or telemarketing messages	Says the contact will market something	(f)(9)
Using an automatic telephone dialing system or an artificial or prerecorded voice	Says how the messages will be sent	(f)(9), (f)(9)(i)(A)
The telephone number	The number the person authorises, so the consent belongs to one number	(f)(9)
Not a condition of purchase	A disclosure that the person need not sign, directly or indirectly, to buy anything	(f)(9)(i)(B)
Clear and conspicuous	Both disclosures “apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures”	(f)(9)(i), (f)(3)

The TCPA consent form builder checks the same list as seven numbered elements (the written agreement and its signature count as one) and drafts the wording around your business name. Below, a finished consent line with each element marked, and the same form written the way lead forms often are.

A consent line, marked up

Mobile number

By checking this box and clicking "Book my inspection",⁰¹ I agree that Northgate Roofing⁰² may contact me with marketing calls and text messages about roof inspections and seasonal offers⁰⁴ at the mobile number I entered above,⁰³ including calls and texts sent using an automatic telephone dialing system, and calls that use an artificial or prerecorded voice.⁰⁵ I do not have to agree to this to buy any property, goods or services.⁰⁶ Message and data rates may apply. I can opt out at any time by replying STOP to any text or telling a caller.⁺

+ is carrier practice for texts (rates, how to stop), not a part of (f)(9).

When you need it, and when less will do

Two questions decide it: does the message sell something, and is it sent by an autodialer or spoken by an artificial or prerecorded voice? Yes to both and the federal rule wants written consent. Selling by hand, or automating something that sells nothing, puts you in a lower tier.

Which consent each kind of call or text needs under 47 CFR § 64.1200
The message	The consent the federal rule asks for	47 CFR § 64.1200
Marketing text from a texting platform, to a cell	Prior express written consent	(a)(2)
Marketing call by a dialer or a prerecorded voice, to a cell	Prior express written consent	(a)(2)
Prerecorded marketing message, to a home landline	Prior express written consent	(a)(3)
Reminder, alert or account text from a platform, to a cell	Prior express consent, spoken or written	(a)(1)(iii)
Prerecorded informational call, to a home landline	None up to three calls in any 30-day period, with an opt-out; prior express consent beyond that	(a)(3)(iii)
Sales call dialled by hand, a person talking	No autodialer consent; the Do Not Call rules apply	(c), (d)
Text typed and sent one at a time from a phone	No autodialer consent; the Do Not Call rules apply to marketing	(c)–(e)

Two carve-outs sit inside (a)(2) itself: a tax-exempt nonprofit, and a “health care” message from a HIPAA covered entity or its business associate, need only prior express consent. The full list of exemptions, with their conditions, is in the TCPA exemptions guide. Whether a given texting platform is an autodialer after Facebook v. Duguid is argued case by case (the autodialer guide walks through it); the table treats a platform send as autodialed because carriers ask for opt-in on every campaign anyway.

Signatures: e-sign, checkboxes and keypresses

“Written” and “signed” do not mean paper and ink. The rule says the term signature “shall include an electronic or digital form of signature, 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)).

The federal law in question is the E-SIGN Act, which bars denying a signature or contract legal effect “solely because it is in electronic form” (15 U.S.C. § 7001(a)) and defines an electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record” (§ 7006(5)). When the FCC wrote the written-consent rule in 2012, it spelled out what that allows:

“consent obtained in compliance with the E-SIGN Act will satisfy the requirements of our revised rule, including permission obtained via an email, website form, text message, telephone keypress, or voice recording”

FCC 12-21, Report and Order (Feb. 15, 2012), ¶ 34

Ways to collect a signature for prior express written consent, and the record each leaves
Way to sign	What the person does	What to keep
Web form: unticked box	The person ticks the box next to the disclosure, then submits	Keep the page version, the box state, time, IP and number
Web form: button	The button's own label says what it agrees to, the disclosure sits right above it	Same record; the button text is part of the wording
Text message	The person texts a keyword, gets the disclosure, replies YES	Keep both messages and their timestamps
Phone keypress or voice	An IVR reads the disclosure and the person presses a key or says yes	Keep the recording or the keypress log and the script version
Paper	A signed sign-up sheet at a counter or an event	Keep the sheet, or a scan of it, with the date

Photomontage of a pencil on the empty signature line of a blank sheet on putty with an oxblood diagonal and a slate block — Fig. 02 A pencil on the empty signature line of a blank sheet

The phrase that does the work is “intent to sign”. A box someone ticks beside the full disclosure shows it; a box that arrives already ticked, or consent tucked into a terms-of-service click, is much harder to call an agreement the person meant. FCC 12-21 asks that the person “agrees unambiguously” (¶ 33). For a texting program, the SMS consent form template lays out a web or paper sign-up form with the box, the carrier lines and the signature.

"Not a condition of purchase"

The second disclosure tells the person they do not have to sign, “directly or indirectly”, to buy anything (§ 64.1200(f)(9)(i)(B)). FCC 12-21 puts the same idea as a rule of conduct: “the written agreement must be obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service” (¶ 33).

Saying it is not enough; the form has to behave that way. A checkout that will not complete until the marketing box is ticked, a quote that only goes out to people who agree, or a single “I agree” that covers both the order terms and the marketing consent all make the consent a condition in fact, whatever the sentence says. Give the consent its own box, let the order or booking go through without it, and keep the transactional messages the order needs (confirmations, delivery notices) on their own consent.

The one-to-one rule: vacated, and what remains

In 2023 the FCC adopted a rule that, as the 11th Circuit described it, let a consumer consent to calls “from only one entity at a time”, and only to calls “logically and topically associated with the interaction that prompted the consent.” It never took effect.

The 11th Circuit vacated it on 2025-01-24: “we grant IMC's petition for review, vacate Part III.D of the 2023 Order, and remand” (Insurance Marketing Coalition Ltd. v. FCC). The court issued its mandate on 2025-04-30, and the FCC removed the wording from the rule, effective 2025-08-29. The current § 64.1200(f)(9) carries no one-to-one wording.

What still binds a consent to a seller

The vacatur took away a cap, not the need to name names. The court's own test is that a person must “clearly and unmistakably state, before receiving a robocall, that they are willing to receive the robocall”, and the definition still requires an agreement that “clearly authorizes the seller”. Three other texts point the same way:

FCC 12-21 ¶ 33 describes the disclosure as telling the person they will receive calls “by or on behalf of a specific seller”.
The FTC's Telemarketing Sales Rule asks for a written agreement that “Evidences the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf of a specific seller” (16 CFR § 310.4(b)(1)(v)(A)(iii)). The TSR vs TCPA guide sets the two rulebooks side by side.
CTIA's carrier guidelines: “A Consumer opt-in should not be transferable or assignable. A Consumer opt-in should apply only to the campaign(s) and specific Message Sender for which it was intended or obtained” (§ 5.1.2.2).

So a form may name more than one business, but each must be named in the wording, and a consent never passes to a business the person did not see. The consent form builder's one-seller section shows how to give two brands two boxes.

The burden of proof, and the records that carry it

If anyone ever disputes a consent, you are the one who has to prove it. The FCC said so when it wrote the rule:

“should any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained”

FCC 12-21, Report and Order (Feb. 15, 2012), ¶ 33

That sentence asks for two proofs: what the person saw, and what they did. A spreadsheet row saying “opted in” proves neither. CTIA lists the record carriers expect for every texting opt-in (§ 5.1.2), and it is the right list for calls too:

CTIA Messaging Principles, May 2023, § 5.1.2

Keep the wording in versions. When you change the disclosure, the old consents stay tied to the old text, so a record needs to say which version a person signed. CTIA also asks senders to “retain and maintain all opt-in and opt-out requests” (§ 5.1.5), and a revocation is part of the same record: the day a number opted out matters as much as the day it opted in.

How written consent ends

Written consent ends the same way any consent does. Under the rule in force since 2025-04-11, a person 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” (§ 64.1200(a)(10)).

Seven reply words count on their own:

STOP
QUIT
END
REVOKE
OPT OUT
CANCEL
UNSUBSCRIBE

Other words count “if a reasonable person would understand those words to have conveyed a request to revoke consent.” A voicemail or email to you, once the person shows it was sent, creates a rebuttable presumption that consent was revoked (§ 64.1200(a)(11)). You have a reasonable time, not more than 10 business days from receipt, to stop, and you may send one confirmation with no marketing in it; sent within five minutes, it is presumed to fall within the consent the person gave. Today the rule also says callers “may not designate an exclusive means to request revocation of consent.” The opt-out keywords guide covers the carrier side.

Caution

Two pieces are still moving. The “revoke all” requirement, which makes an opt-out from one type of informational message cover all your future robocalls and robotexts on unrelated matters, was delayed to 2026-04-11 and then to 2027-01-31.

On 2026-09-30 the FCC adopted FCC 26-67. Once it takes effect, a caller may designate an exclusive revocation method from three (a key-press opt-out on the call, a reply with a standardized word, or a website or phone number the caller names), disclosed clearly on the call or in the text; a telemarketing opt-out revokes consent to all future telemarketing robocalls from that caller. The ten-business-day limit stays. The order takes effect 30 days after Federal Register publication, and as of 2026-10-22 it has not been published: it is adopted, not yet in effect.

When the number changes hands

Consent belongs to the person, not the number. When a number is disconnected and reassigned, the new holder never agreed to anything. The FCC's Reassigned Numbers Database gives a safe harbor if you obtained consent from the intended recipient, checked the database before calling, and it wrongly answered “no”. The reassigned numbers guide explains the check.

Photomontage of a hand holding a phone from behind beside a blank index card on a slate block with a putty diagonal and an oxblood bar — Fig. 03 A phone held from behind beside a blank index card

Do it: five steps to a consent that holds

The order that keeps the wording, the form and the record in step with each other.

Rules read 2026-10-22

For the rest of the program (Do Not Call scrubbing, calling hours, carrier rules), the TCPA compliance guide is the map. This page explains the rule as read on 2026-10-22; it is not legal advice, and a lawyer who knows your program should read your final wording.

Questions owners ask

What is prior express written consent?

It is the consent the FCC requires before a business sends marketing calls or texts with an autodialer or an artificial or prerecorded voice: a written agreement, signed by the person (an electronic signature counts), that authorises the named seller to send those messages to a stated phone number. It must also say, clearly and conspicuously, that signing authorises the calls and that the person does not have to agree in order to buy anything. The definition sits at 47 CFR § 64.1200(f)(9).

Is express written consent the same as prior express written consent?

In practice, yes. "Express written consent" is how many forms and vendors shorten it; the FCC's term is "prior express written consent" because it must be in hand before the first call or text. Carriers use similar words for texting programs: CTIA asks for a consumer's express written consent to receive marketing messages whether or not the TCPA applies.

Does a checkbox on a web form count as a signature?

It can. The rule counts an electronic or digital signature where federal law or state contract law recognises it, and the FCC said in 2012 that consent obtained in compliance with the E-SIGN Act, including through a website form, satisfies the rule. Leave the box unticked, put the full disclosure next to it, and keep a record of what the person saw and when they ticked it.

Can one consent cover several companies?

The FCC's one-to-one rule, which would have limited each consent to one seller, was vacated on 2025-01-24 and removed from the rule effective 2025-08-29. The definition still requires the agreement to clearly authorise "the seller", so every business that will call or text should be named in the wording itself. A link to a list of "marketing partners" names no one.

Do appointment reminders need written consent?

Not under the federal rule. Informational calls and texts by an autodialer or prerecorded voice to a cell phone need prior express consent, which can be spoken or written. The moment the message sells or advertises something, it needs the written kind. Some states define their own written consent; check the state statute before relying on the federal line.

How long should we keep consent records?

Neither § 64.1200(f)(9) nor FCC 12-21 sets a retention period for consent records, but the seller carries the burden of proving consent if it is ever questioned, and CTIA tells message senders to retain all opt-in and opt-out requests. Keep each record for at least as long as you text or call the number, and ask counsel how long after that a claim could still be brought.

Sources

47 CFR § 64.1200, Delivery restrictions: (a)(1)–(3), (a)(10)–(12), (c)(2), (f)(3), (f)(9), (f)(10) (eCFR, current as of 2026-10-20)fetched 2026-10-22
47 U.S.C. § 227, Restrictions on use of telephone equipment (govinfo, 2023 edition)fetched 2026-10-22
FCC 12-21, TCPA Report and Order (Feb. 15, 2012), ¶¶ 32–34fetched 2026-10-22
15 U.S.C. § 7006(5), E-SIGN Act: electronic signature (govinfo)fetched 2026-10-22
15 U.S.C. § 7001(a), E-SIGN Act: general rule of validity (govinfo)fetched 2026-10-22
16 CFR § 310.4(b)(1)(v)(A), Telemarketing Sales Rule: prerecorded-call agreements (eCFR)fetched 2026-10-22
Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025)fetched 2026-10-22
FCC, conforming rule after the one-to-one vacatur, 90 FR 42137 (Aug. 29, 2025)fetched 2026-10-22
FCC, Order DA 26-12 (Jan. 6, 2026), revoke-all delay to Jan. 31, 2027fetched 2026-10-22
FCC, Order and FNPRM FCC 26-67 (adopted Sept. 30, 2026)fetched 2026-10-22
Federal Register, FCC documents (checked for FCC 26-67 publication)fetched 2026-10-22
FCC, Reassigned Numbers Databasefetched 2026-10-22
CTIA, Messaging Principles and Best Practices (May 2023), §§ 5.1.2–5.1.5fetched 2026-10-22
Fla. Stat. § 501.059(1)(g), Florida Telephone Solicitation Actfetched 2026-10-22
15 O.S. § 775C.2(3)–(4), Oklahoma Telephone Solicitation Act of 2022 (enrolled HB 3168)fetched 2026-10-22
Md. Code, Com. Law § 14-4501(d)–(e), Stop the Spam Calls Act of 2023 (SB 90, ch. 413)fetched 2026-10-22