What 'Prior Express Written Consent' Really Means Under Federal Law

If you have read anything about the TCPA, you have probably encountered the phrase prior express written consent. It appears in almost every TCPA case, and it is the single most important concept in determining whether a company legally contacted you. But what does it actually mean, and why do so many companies fail to obtain it properly?

The Legal Standard

Under FCC rules, prior express written consent is required before a company can send you marketing or promotional messages using automated technology. The consent must be:

• In writing (digital or physical)
• Signed by the consumer (including electronic signatures like checking a box)
• Clearly authorizing the specific company to contact you
• Including the phone number to be contacted
• Stating that the consumer understands automated messages will be sent
• Not required as a condition of purchase

That last point is critical. A company cannot refuse to sell you something or provide a service unless you agree to receive marketing texts. The consent must be voluntary.

What Counts as Valid Consent

There are several ways a company can obtain valid prior express written consent:

• A checkbox on a web form that you actively checked (not pre-checked) agreeing to receive automated texts or calls from the named company
• A paper form you signed that explicitly authorized the company to contact you using automated technology
• A text message you initiated to a short code or number, where the response disclosed that you were opting into automated messages
• An electronic signature on a clear disclosure that identified the company and the types of messages you would receive

What Does NOT Count as Consent

Many companies believe they have consent when they actually do not. Common failures include:

• Pre-checked boxes that the consumer never actively selected
• Consent language buried deep in a terms of service document
• Verbal consent without any written record
• Consent given to one company being used by a different company
• Consent for one type of communication being used to justify a different type
• Consent obtained as a mandatory condition of purchasing a product or service
• Providing your phone number on a form without any language about automated communications

The Lead Generator Problem

One of the biggest areas of TCPA litigation involves lead generators. These are websites that collect your information through forms and then sell or share it with multiple companies. You might fill out one form to get a quote on car insurance and suddenly receive texts from five different companies you have never heard of.

The FCC has made it clear that consent given to a lead generator does not automatically transfer to every company the lead generator works with. Each company that contacts you generally needs its own specific consent. If you did not agree to hear from a particular company by name, they may not have valid consent to contact you.

How This Affects Your Claim

If a company cannot demonstrate that they obtained proper prior express written consent before contacting you, they have likely violated the TCPA. When you submit a claim with Hammerhead Legal, our legal team examines how the company claims to have obtained consent, and whether that consent meets the legal standard.

Every case is different, but if you do not remember agreeing to receive messages from the company that contacted you, there is a reasonable chance that valid consent does not exist.