What is prior express written consent?

short answer

Prior express written consent is the TCPA standard for marketing calls and texts sent with an autodialer or prerecorded voice. It requires a written agreement, signed by the consumer, that clearly authorizes marketing messages from a specific seller, discloses that consent is not a condition of purchase, and identifies the phone number to be contacted. An electronic signature counts. The common failure is not the signature but the disclosure: vague wording, or wording that has since changed and was never preserved.

The four elements

A compliant express written consent record must:

Be in writing, which includes electronic records and signatures under the E-SIGN Act. A checkbox with a submitted form qualifies.
Clearly authorize the specific seller to deliver marketing messages using an autodialer or prerecorded voice.
Disclose that consent is not a condition of purchase. This wording is required, and omitting it is a frequent, avoidable defect.
Identify the telephone number the consumer is authorizing contact to.

A pre-checked box is not consent. Consent bundled invisibly into terms of service is a weak record at best.

Why the disclosure is where records fail

The signature is rarely contested. What gets contested is what the person was shown.

A typical record says: consent given, timestamp, IP address, page URL. Two years later the page has been redesigned four times. The record proves someone submitted a form. It does not prove what that form said, and the version that was live that day is gone.

A defensible record captures the verbatim disclosure text as displayed, not a reference to a template that has since changed. See proving consent.

Naming who receives the data

The FCC’s one-to-one consent rule — which would have required consent per identified seller — was vacated in January 2025 and is not in force. See the TCPA guide.

Naming recipients is still worth doing:

CMS requires it for Medicare marketing, unaffected by the vacatur
Lead buyers increasingly demand it as a purchasing condition
It is a much stronger record. “Consent to be contacted by our marketing partners” invites the question of who those were on the day, and a list of five hundred names added later is not a persuasive answer

If your form names recipients, bind that list into the record itself so a later addition is detectable.

A practical checklist

Checkbox is unchecked by default and separate from terms acceptance
Disclosure states the seller by name
Disclosure says consent is not a condition of purchase
The phone number being consented to is captured
The exact disclosure text shown is stored, not a template reference
The page’s terms and privacy policy as they read that day are preserved
Recipients, if named, are recorded as part of the record
The record survives a redesign, a vendor change, and staff turnover

The test that matters

Imagine a carrier or a court asks, eighteen months from now: what exactly did this person agree to, and how do we know?

If the answer requires trusting your database, it is a weak record. If it can be checked independently — by recomputing something, or by a third party who was not involved — it is a strong one.

General information, not legal advice.