Glossary
Prior Express Written Consent
What is prior express written consent?
Short answerPrior express written consent is a signed written agreement in which a consumer authorises a specific seller to send marketing calls or texts to a specific phone number using an autodialer or prerecorded voice. It must state that consent is not a condition of purchase. Electronic signatures count. Without it, marketing robocalls and robotexts to a mobile number violate the TCPA.
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Consent is the foundation of every TCPA defence, and the burden of proving it sits with you, not the plaintiff. In practice this means a consent record you cannot produce on demand is worth the same as no consent at all.
The four required elements
For marketing robocalls or robotexts to a mobile number, the written agreement must:
- Identify the specific seller authorised to make the calls -- by name, not by category;
- Identify the specific phone number the consumer is consenting for;
- State that the consumer agrees to receive autodialed or prerecorded marketing messages;
- Disclose that consent is not a condition of purchasing any good or service.
Miss the fourth element and the consent is defective even if the consumer plainly wanted the calls. It is the most commonly omitted of the four.
Quick check: what consent has to say
Pick an answer to see whether it is right, and why.
What to retain
Courts want records, not assertions. Retain, per lead:
- the exact disclosure text the consumer saw, as rendered -- not the current version of your form;
- the timestamp of submission;
- the IP address;
- the URL or script;
- the phone number as submitted.
Keep it for at least four years, matching the TCPA's statute of limitations. If you buy leads, your contract should require the vendor to produce these records on demand -- and you should have tested that they actually can, because discovering otherwise mid-litigation is a bad time to find out.
Consent is not hygiene
No scrubbing tool can create consent, and NumberBroom does not claim to. Scrubbing removes numbers you should not call; consent is the separate process that makes the remaining calls lawful. You need both. How they fit together.
Frequently asked questions
Is express written consent the same as express consent?
No, and the distinction decides cases. Prior express consent is the lower standard -- for informational or transactional autodialled calls, simply providing your number can be enough. Prior express written consent is the higher standard, required for marketing calls and texts to mobile numbers, and it demands a signed agreement with specific disclosures.
Does an electronic signature count?
Yes. The E-SIGN Act makes electronic signatures valid for TCPA consent, so a web form checkbox with a recorded submission qualifies -- provided the disclosure language is present and you retain the evidence.
Can one form give consent to several companies?
Yes, currently. The FCC's one-to-one consent rule would have prohibited this, but the Eleventh Circuit vacated it in January 2025 and it never took effect. A form naming multiple sellers can still be valid consent.
That said, each named seller must be identified clearly. "Our partners" or "trusted third parties" does not meet that test, because the agreement has to clearly authorise the seller making the call (47 CFR 64.1200(f)(9)).
How long does consent last?
The TCPA sets no expiry. Consent persists until the consumer revokes it -- but it dies the moment the number is reassigned to someone new, because consent attaches to the person, not the digits. For older leads, check the Reassigned Numbers Database before dialling.