TCPA Consent: What Is Required Before a Call or Text

What the TCPA Regulates

The Telephone Consumer Protection Act, 47 U.S.C. § 227, and the FCC's implementing rules at 47 CFR § 64.1200 restrict several distinct categories of conduct. Treating them as one rule is the most common source of confusion, because the consent required differs by category.

• Calls to a mobile telephone number using an automatic telephone dialing system or an artificial or prerecorded voice
• Calls to a residential line using an artificial or prerecorded voice
• Telemarketing calls to numbers on the National Do Not Call Registry
• Telemarketing calls to numbers on an entity's internal do-not-call list
• Unsolicited advertisements sent by fax
• Calls outside permitted hours, being before 8 a.m. or after 9 p.m. at the called party's location

Text messages are treated as calls for these purposes, which is why the statute governs SMS marketing despite predating it by decades. Each message is a separate potential violation.

Prior Express Consent Versus Prior Express Written Consent

The statute uses two grades of consent and the distinction turns on the content of the call rather than the technology used.

Prior express written consent has prescribed content. It must be a written agreement, signed by the consumer, that clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, that includes the telephone number to which the consumer authorizes delivery, and that includes a clear and conspicuous disclosure informing the consumer that the agreement is not a condition of purchase. The E-SIGN Act permits electronic signatures.

The not-a-condition-of-purchase disclosure is frequently omitted and is a common basis for claims, because its absence means the consent obtained was not the consent the rule requires.

Prior express consent for informational calls is a lower bar. The FCC has taken the position that a consumer who knowingly releases a telephone number in connection with a transaction has consented to be called at that number regarding it, absent instructions to the contrary. The scope of that consent is bounded by the context in which the number was given.

The Autodialer Definition After Duguid

The statute defines an automatic telephone dialing system as equipment with the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers. For years courts divided over whether the generator clause modified only produce, or both store and produce, with the broader reading sweeping in ordinary systems dialing from a stored customer list.

In Facebook, Inc. v. Duguid (2021) the Supreme Court adopted the narrower reading. To qualify as an autodialer, equipment must use a random or sequential number generator either to store or to produce the numbers it dials. A platform dialing from a curated list of customer numbers does not, on that reading, meet the definition.

The decision narrowed one theory without ending TCPA litigation, and the reasons are worth being precise about.

• The artificial or prerecorded voice prohibition is independent of the autodialer definition and was untouched. Ringless voicemail and prerecorded call campaigns remain squarely regulated
• Do Not Call Registry and internal do-not-call claims never depended on the dialing technology at all
• Plaintiffs have pursued arguments that particular platforms do use a generator, including for sequencing rather than for producing numbers
• State mini-TCPA statutes enacted after Duguid define regulated equipment more broadly than the federal statute

Revocation of Consent

A consumer may revoke consent, and the FCC's position has been that revocation may be made through any reasonable method that clearly expresses a desire not to receive further messages. A caller may not designate an exclusive means of revocation, and cannot require use of a particular form or channel as the only way to opt out.

Standard replies such as stop, quit, end, revoke, opt out, cancel and unsubscribe are treated as revoking consent. Rules have addressed the time within which a caller must honor a revocation and the scope of what a revocation covers where a business runs multiple message programs.

A separate line of authority concerns consent given as part of a bargained-for contract. Some courts have held that consent forming part of the consideration in a binding agreement cannot be unilaterally revoked, while others have declined to follow that reasoning. The division remains unresolved, and the practical exposure depends on where a case is filed.

The Do Not Call Rules

Two lists operate in parallel. The National Do Not Call Registry covers residential and mobile numbers registered by consumers, and telemarketers must scrub against it. The rules require an entity to have accessed the registry within a defined period before the call, commonly implemented as a scrub within 31 days.

An entity must also maintain an internal do-not-call list and honor requests made directly to it, together with a written policy available on demand and training for personnel engaged in telemarketing. Internal list claims survive independently of registry claims and of the technology used.

Exemptions from the registry rules include calls to consumers with whom the caller has an established business relationship, within defined periods following a purchase or inquiry, and calls made with prior express written consent. The established business relationship exemption applies to the registry rules; it does not supply the consent needed for autodialed or prerecorded calls to a mobile number, which is a distinction frequently missed.

Tax-exempt nonprofit organizations, calls for political purposes, and purely informational calls fall outside the telemarketing definition, though other provisions may still apply.

Damages and Class Exposure

The statute provides a private right of action for actual monetary loss or $500 per violation, whichever is greater. A court may in its discretion treble that to $1,500 where the defendant willfully or knowingly violated the statute. There is no statutory cap on aggregate recovery.

Because each message is a separate violation, exposure scales linearly with campaign volume and is disconnected from any demonstrated harm. A campaign of a hundred thousand messages sent without conforming consent presents a nominal exposure of fifty million dollars before any trebling. That arithmetic is what drives settlement values and what makes the consent paperwork disproportionately important relative to its apparent formality.

State attorneys general may bring actions on behalf of residents, and the FCC has independent enforcement authority with forfeiture penalties. Standing under Article III remains a live issue in TCPA cases, though unwanted calls have generally been treated as bearing a close relationship to traditional intrusion-upon-seclusion harms.

Who Is Liable: Sellers, Callers and Vicarious Liability

A recurring feature of TCPA litigation is that the entity sued is often not the entity that placed the call. Campaigns commonly run through lead generators, marketing agencies and dialing vendors, and the question of who answers for a violation is frequently the central issue.

The FCC has taken the position that a seller may be vicariously liable under federal common-law agency principles for calls placed on its behalf by a third party, even where the seller did not itself place the call. Liability can rest on actual authority, apparent authority or ratification. The analysis looks at the degree of control the seller exercised over the campaign, access it had to systems and records, and whether it accepted the benefit of the calls with knowledge of how they were generated.

That framework makes contractual allocation of risk incomplete as a defence. An indemnity from a lead vendor allocates loss between the parties; it does not remove the seller from the claim. The evidentiary consequence is that the party best placed to produce consent records is often not the party defending the case, and proof of consent is the defendant's burden to establish rather than the plaintiff's to negate.

Where consent originates with a lead generator, the durability of that consent depends on records the seller may never have held: the web form as presented, the disclosure text displayed, the timestamp, the originating page and the consumer's identifier. Claims frequently turn on whether those records exist at all.

State Mini-TCPA Statutes

Several states responded to the narrowing of the federal autodialer definition by enacting their own telemarketing statutes, and these are not simply state copies of the federal rule. The differences run in the direction of broader coverage.

• Broader equipment definitions. Some statutes regulate automated selection or dialing systems without the random or sequential number generator element the Supreme Court read into the federal definition
• Consent presumptions. Provisions treating calls to residents as presumptively made without consent, shifting the practical burden at the pleading stage
• Narrower calling windows and per-day limits. Restrictions on the number of calls to the same person within a period, tighter than the federal 8 a.m. to 9 p.m. rule
• Independent private rights of action with their own statutory damages, running alongside a federal claim rather than instead of it

The consequence is that a campaign structured to satisfy the post-Duguid federal standard may still generate exposure in specific states, and a national calling program is measured against the strictest applicable rule rather than the federal floor. Whether a given statute reaches a particular campaign depends on its own definitions and on where the called party is located.

FCC Rulemaking

The FCC continues to shape the statute through rulemaking, and the practical rules frequently move faster than the statutory text. Areas of sustained activity include the treatment of consent obtained through lead generators and comparison-shopping sites, revocation timing and scope, call authentication and blocking, exemption conditions for non-telemarketing prerecorded calls, and the treatment of ringless voicemail.

One line of rulemaking addressed whether a single consent can authorize calls from multiple sellers, a practice common in lead generation. Rules in this area have been subject to challenge in the courts of appeals, and the status of particular provisions has shifted. A lead-generation consent model is therefore measured against the rule as it currently stands rather than as it stood when the program was designed.

Fax and Calling-Time Restrictions

Two further prohibitions sit in the statute and are frequently overlooked because they do not involve consent analysis in the same way.

The statute restricts unsolicited advertisements sent by facsimile, and the provision survives despite the decline of the medium. An unsolicited advertisement is material advertising the commercial availability or quality of property, goods or services sent without prior express invitation or permission. The Junk Fax Prevention Act added an established business relationship exemption subject to conditions, including that the sender obtained the number voluntarily and that the fax carries a conforming opt-out notice. Litigation in this area has centered on whether a transmission is an advertisement at all and on whether faxes received through online fax services fall within the provision.

Separately, the rules prohibit telephone solicitations to a residential subscriber before 8 a.m. or after 9 p.m. local time at the called party's location. The reference point is the called party's location rather than the caller's, which makes the restriction a function of area code and, where a mobile number has moved with its owner, of actual location. Calling-time claims are pleaded alongside consent claims and do not depend on the technology used to place the call.

Both provisions carry the same damages structure as the rest of the statute, so a campaign compliant on consent can still generate per-message exposure on timing or on fax content alone.

Frequently Asked Questions