Here’s a quick look at the basic rules around consent for those interested in TCPA issues.

First the TCPA contains two general restrictions– those related to calls made using certain types of technology (“regulated technology”) and those made for marketing purposes to numbers on the DNC list.

Regulated technology includes calls made using an automatic telephone dialing system (ATDS), prerecorded or artificial voice calls and calls made using an AI voice. It also likely includes prerecorded and artificial or AI voicemails or ringless voicemails.

Calls made using regulated technology to a cellular phone require “express consent” when made for informational purposes and “express written consent” when made for marketing purposes.

Prerecorded or artificial or AI voice calls made to a landline require “express written consent” when made for marketing purposes or when made in excess of three per month for informational purposes (three prerecorded calls to landlines for informational purposes may be made monthly without consent.)

The precise contours of what constitutes express consent and express written consent is shifting, as is the definition of “marketing.”

Generally courts hold “express consent” means “consent that is clearly and unmistakably stated.” This include both a content requirement and format requirement.

As to content the FCC has required the inclusion of 9 critical pieces of information in a valid express written consent form. (See 47 CFR Section 64.1200(f)(9)). 

The disclosure must also be presented in a manner that is not deceiving to the consumer and clearly and CONSPICOUSLY lays out the terms. Generally companies use the R.E.A.C.H. standards to assure they are complying with these rules.

For informational calling “express consent” does not require full written consent but does need to clearly have the consumer express an intention to receive calls. For many years an FCC ruling from 2009 implied express consent to use such technology any time a consumer provided their number to a caller for a purpose closely related to the purpose of the call. However that ruling is in doubt following recent Supreme Court determinations striking down Chevron deference. Accordingly, it is unclear whether the consumer must now specifically authorize the use of automated or prerecorded or artificial voice contact to provide valid express consent for informational purposes.

The line between what is marketing and informational is also fuzzy. The definition of marketing is broad an includes any effort to encourage a consumer to buy or rent any good or service. Whether a call is marketing looks at the INTENT of the caller– not the content of the call. Some courts have found a call made only to offer to buy something–or to offer a free service–are NOT marketing calls. But if any payment is to be expected of a consumer–directly or indirectly– you can expect a finding the call is marketing, even if serving a dual or informational purpose as well.

Finally, calls made to numbers on the DNC list for marketing purposes require either prior express invitation or permission or an established business relationship.

Like PEWC, PEIP must be in writing but the nine requirements of 47 CFR 64.1200(f)(9) are not required. Instead a consumer must merely ask for the messages at issue in a clear and written form.

An oral request for information qualifies as an inquiry EBR but only lasts for 90 days. During that 90 day period a caller may contact a consumer manually regarding the good or service the consumer inquired about, even if their number is on the DNC list.

These rules apply equally to B2C and B2B calls, although there is a narrow exception to the DNC rules for calls made to business numbers (note: B2B intent is irrelevant, what matters is how the number at issue is being used.)

Even after consent has been obtained properly it can be revoked for all purposes. As of April 11, 2025 a new FCC rule will go into effect that will massively expand the scope of revocation and will result in consent being treated as revoked across all channels for all purposes.