Defenses / Prior express written consent

Prior express written consent: the four elements and the record that proves each

Updated 2026-11-036 minute read

Prior express written consent is defined in the FCC’s rules, and the definition is a checklist. Four elements. Miss one and the agreement does not meet the standard, however sincerely the consumer wanted to hear from you. The record that proves it is a copy of the agreement and enough context to show this person made it, on this date, before the calls started.

The definition

Under 47 C.F.R. § 64.1200(f)(9), prior express written consent is an agreement in writing, bearing the signature of the person called, that clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and that includes the telephone number to which the messages may be delivered. The agreement must also make clear that consent is not a condition of purchasing any property, goods or services. Whether the system is an autodialer at all is a separate question, answered under not an autodialer: the Duguid defense.

Element one: a signature

An electronic signature counts under the E-SIGN Act. In practice that means a checkbox the consumer ticks, a button the consumer presses under a disclosure, a text reply, or a recorded verbal agreement, provided the system captures the act and ties it to the person. A pre-ticked box is weak evidence of a signature because the consumer did nothing. A box the consumer had to tick is strong.

Element two: a clear and conspicuous disclosure

The consumer has to be told, in words they could see and read, that they are agreeing to marketing by automated dialing or recorded voice from this seller. "Clear and conspicuous" means not hidden: not in a footer, not behind a link, not in a block of terms the consumer scrolled past. Courts look at placement, size, contrast and proximity to the signature. The most common failure is a disclosure that mentions "calls" but not the automated means.

Element three: the number

The agreement has to include the telephone number being authorized. A form that captures consent and a separate form that captures the number, with no link between them, is a gap a plaintiff will drive through.

Element four: not a condition of purchase

The disclosure has to say that the consumer does not have to agree in order to buy. This is the element most often missing from older forms, and it is a complete failure of the standard when it is.

Timing and scope

The consent must exist before the first marketing call. It covers the seller named or reasonably identified in the disclosure. The FCC adopted a one-to-one consent rule in 2023 that would have required each seller to be named individually; the Eleventh Circuit vacated it in January 2025 before it took effect. The prior standard remains, under which whether a disclosure covering several sellers reasonably extended to you is decided on the facts. Draft as if you had to be named. Consent given by a previous holder of the number is covered under reassigned numbers and the safe harbor.

Proving it

Produce the agreement as the consumer saw it. For a web form that means the form version in force on the date, rendered, with the disclosure visible, and the record of the submission: number, timestamp, IP address, user agent, checkbox state. Lead certification services produce a certificate and a replay of the session; that is useful, but you still need the underlying disclosure text to show the four elements. For a recorded verbal agreement, produce the recording and the script. Version control matters: a form that was fixed last month does not prove what the consumer saw last year. The wider record, including revocation, is set out under consent as a TCPA defense.