Consent: express, express written, and revocation

This entry takes each in turn, then the questions that follow: lead generators, burden of proof, and reassigned numbers.

Three questions

When a caller says "we had consent", the first question is consent to what. The statute at § 227(b)(1)(A) requires "prior express consent of the called party" for ATDS or prerecorded calls to cell phones and says nothing about writing. The FCC's rules then distinguish by purpose: for telemarketing and advertising calls the consent must be written; for other calls it need not be. The second question is whether the consent was still in force when the call was made. The third is whether the caller can prove it.

Prior express consent

For non-marketing calls, the FCC has held since 1992 that a person who knowingly releases their telephone number to a business has given consent to be called at that number for purposes closely related to the reason it was given. A patient who gives a cell number to a clinic has consented to appointment reminders; a borrower who gives a number on a credit application has consented to calls about the account. The consent is express because the number was provided, not implied from conduct, and it is limited to the purpose and the relationship. It does not extend to marketing by automated means.

Prior express written consent

Adopted in 2012 and in force since 16 October 2013, § 64.1200(a)(2) requires prior express written consent for any call that includes or introduces an advertisement or constitutes telemarketing, made to a cell phone using an ATDS or an artificial or prerecorded voice, and § 64.1200(a)(3) requires the same for prerecorded telemarketing calls to residential lines. The term is defined in § 64.1200(f).

The elements, one by one

In writing, signed

A paper form, a web form with a checkbox or button, a text reply, a keypress, or a recorded voice, so long as it records an affirmative act by the person. A pre-ticked box is not a signature.

Clearly authorises the seller

The seller is the business whose goods are being sold, not the lead generator or the platform. The consent language has to identify it so that a reader knows who may call.

Automated means disclosed

The person must be told that the calls or texts may be made with an autodialer or an artificial or prerecorded voice. Consent to "calls" without that disclosure is not written consent for robocalls.

The number

Consent attaches to the number the person designates, not to the person generally.

Not a condition of purchase

The disclosure must say so, clearly and conspicuously. Burying it in a terms link has been held insufficient by some courts.

Lead generation and one-to-one

Comparison websites and lead forms have long collected one consent that named dozens of "marketing partners" by hyperlink. In December 2023 the FCC adopted a rule that written consent obtained on such a site must authorise one identified seller at a time and must be logically and topically related to the website, with an effective date of 27 January 2025. On 24 January 2025 the Eleventh Circuit vacated the rule in Insurance Marketing Coalition Ltd. v. FCC, holding that the Commission could not add requirements beyond the statutory words "prior express consent". The 2012 definition therefore remains the standard. Whether a multi-seller hyperlinked list "clearly authorizes the seller" under that definition is a question courts decide on the facts of each form.

Revocation

Consent can be withdrawn at any time, by any reasonable means. The Eleventh Circuit held in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), that oral revocation is effective. The FCC's 2015 ruling agreed and rejected caller-designated exclusive methods. The 2024 rules, effective 11 April 2025, codify the position at § 64.1200(a)(10): revocation by any reasonable method, including the listed STOP-style keywords, is effective, and the caller must honour it within ten business days. A caller may send one confirmation message and may ask once whether the revocation covers all message types. Consent given as a condition in a contract cannot be made irrevocable by the contract.

Burden of proof and records

Consent is an affirmative defence. The FCC said so in 2008 and courts have consistently placed the burden on the caller. The practical consequence is that a caller must be able to produce, for the specific number called, the form as the person saw it, the date and time, the source, and the identity of the seller named. A spreadsheet column reading "opt-in" or a vendor's assurance that the list was compliant does not meet the burden. Record retention should match the four-year limitations period at a minimum.

Reassigned numbers

Consent belongs to the subscriber, so when a number is reassigned the new holder has not consented. The FCC's 2015 one-call safe harbour was set aside in ACA International. The Commission then created the Reassigned Numbers Database, operational since 2021, and a safe harbour at § 64.1200(m): a caller that checks the database and receives a response that the number has not been permanently disconnected since a given date is protected if the response was wrong. A caller that does not check bears the risk.