TCPA Consent Types: Express vs Written Explained
The Telephone Consumer Protection Act (TCPA) and its implementing FCC rules recognize two distinct types of consent for automated or prerecorded calls and texts: prior express consent and prior express written consent. Which one applies depends entirely on the purpose of the message. Informational messages generally require prior express consent, while marketing or telemarketing messages require the stricter prior express written consent, defined specifically in 47 CFR 64.1200(f).
Confusing the two is one of the most common compliance mistakes organizations make, because the difference is not about how the consent was collected in a general sense, it is about a specific set of required disclosures tied to the purpose of the message.
The two consent types, defined
| Consent type | Governing definition | Required for | Form it can take |
|---|---|---|---|
| Prior express consent | Established through FCC orders and case law interpreting the TCPA, rather than a single written definition in the CFR | Informational, non-marketing autodialed or prerecorded calls and texts, such as appointment reminders or account alerts | Can generally be inferred from the context of the relationship, such as voluntarily providing a phone number, though written confirmation is still advisable |
| Prior express written consent | 47 CFR 64.1200(f)(9) | Marketing and telemarketing autodialed or prerecorded calls and texts | Must be a written agreement, which can be electronic, that meets the specific disclosure requirements below |
What 47 CFR 64.1200(f)(9) requires for written consent
Under 47 CFR 64.1200(f)(9), prior express written consent is defined as an agreement, in writing, bearing the signature of the person being called or texted, that clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or prerecorded voice, and that includes the telephone number to which the messages may be sent. The regulation specifies at 47 CFR 64.1200(f)(9)(ii) that the term signature includes an electronic or digital form of signature, to the extent that form of signature is recognized as valid under applicable federal law, such as the E-SIGN Act, or under state contract law.
The written consent must also make clear that the person is not required to sign the agreement or agree to receive such messages as a condition of purchasing any property, goods, or services. Consent bundled into a purchase requirement, without that disclosure, does not meet the standard.
What the written consent disclosure must contain
To meet 47 CFR 64.1200(f)(9), the disclosure and resulting agreement generally needs to make each of the following clear to the consumer before consent is given.
- That the consumer is authorizing the specific seller, or the party sending the messages, to send marketing messages using an autodialer or prerecorded voice.
- The telephone number the consumer is authorizing to receive those messages.
- That the consumer's agreement is not a condition of purchasing any property, goods, or services.
- A method for the consumer to provide a signature that is recognized as valid under applicable federal law, such as the E-SIGN Act, or under state contract law if consent is collected electronically, such as a checkbox tied to an unambiguous disclosure, rather than a pre-checked box or a buried term.
The core test regulators and courts apply is whether the disclosure was clear and conspicuous, meaning a reasonable consumer would understand exactly what they were agreeing to before taking the action that created consent.
Marketing vs informational: why the split matters
The line between prior express consent and prior express written consent tracks the purpose of the message, not the sender or the channel. A hospital sending an appointment reminder is typically sending an informational message and can rely on prior express consent, often satisfied by the patient providing their number during intake. That same hospital sending a promotional text about a new service line is sending a marketing message, which requires prior express written consent meeting the full 47 CFR 64.1200(f)(9) standard.
This is why organizations that send both types of messages need two separate consent records, not one blanket opt-in. Treating every message as informational because the sender is generally an informational communicator, such as a healthcare provider or nonprofit, is a common way organizations under-collect consent for the marketing messages mixed into the same program. For the practical mechanics of collecting and documenting both types correctly, see the full breakdown of express versus written SMS consent.
How this plays out for mixed-purpose messages
Many real messaging programs are not purely informational or purely marketing; a single campaign can drift between the two. A nonprofit sending a donation receipt confirmation is informational. That same nonprofit adding a line encouraging the recipient to give again, or promoting an upcoming fundraising event, has shifted part of that message into marketing territory. The safest approach is to evaluate the dominant purpose of each message template on its own, rather than assuming an organization's overall mission classifies every message it sends as one type or the other.
When a program includes both types, many organizations collect prior express written consent up front for the full relationship, since it satisfies the requirement for both categories, rather than trying to maintain two separate consent records for the same contact. That approach reduces administrative complexity but only works if the written consent disclosure itself was collected correctly under 47 CFR 64.1200(f)(9) in the first place.
Documenting consent so it holds up later
Collecting the right type of consent is only half the task; being able to prove it later is the other half. For prior express written consent, retain the actual disclosure language shown to the consumer at the time, a timestamp of when consent was given, the method used to collect it such as a web form or a physical sign-up sheet, and the specific phone number that was authorized. If the disclosure text changes over time, keep a version history rather than only the current version, so a consent record from two years ago can still be matched against the disclosure language that was actually in effect when it was collected.
For prior express consent, the documentation bar is lower but still worth maintaining. A record of when and how a phone number was provided, such as during a specific intake form or account signup, gives an organization something concrete to point to if a recipient later disputes having consented. Organizations that cannot produce any record of how a number was obtained are in a weaker position than those with even a basic timestamped log, regardless of which consent standard applied to the message in question.
Consent is only one piece of TCPA compliance
Consent doctrine is also still moving. The FCC's December 2023 one-to-one consent requirement for lead-generated calls was vacated by the Eleventh Circuit in January 2025, and the FCC's revocation-of-consent rules adopted in 2024 phased in on their own schedule, so verify the current state of both before relying on any consent framework built more than a year ago. Meeting the correct consent standard also does not complete TCPA compliance on its own. Organizations also need to manage opt-out requests correctly and keep consent, timing, and content practices aligned across the full messaging program. See the TCPA compliance checklist for how consent fits alongside the rest of the requirements, and the opt-in and opt-out requirements guide for what has to happen after consent is collected, including honoring STOP requests immediately.
What happens without the right consent type
The TCPA carries statutory damages of $500 per violation, which can be trebled up to $1,500 per violation for willful or knowing violations, under 47 USC 227(b)(3). Because each individual text can be treated as a separate violation, a mismatched consent program, such as sending marketing messages under only informational-level consent, can create liability that scales quickly with the size of a messaging list.
This article is general information, not legal advice. Requirements vary by jurisdiction and change over time, so confirm your own obligations with qualified counsel or the relevant regulator.
Frequently Asked Questions
What are the two types of TCPA consent?
The two types are prior express consent, generally sufficient for informational, non-marketing messages, and prior express written consent, required for marketing and telemarketing messages under 47 CFR 64.1200(f)(9). The difference is defined by the purpose of the message, not by how casually or formally consent was collected.
When is prior express written consent required instead of prior express consent?
Prior express written consent is required whenever the message being sent is marketing or telemarketing in nature and is sent using an automatic telephone dialing system or prerecorded voice. Informational messages, such as appointment reminders or service alerts, typically only require prior express consent.
What has to be included in a prior express written consent disclosure?
Under 47 CFR 64.1200(f)(9), the disclosure must clearly authorize the specific sender to deliver marketing messages using an autodialer or prerecorded voice, include the phone number being authorized, and state that consent is not a condition of purchasing goods or services. It also needs a valid electronic or physical signature.
Can consent be given verbally instead of in writing?
For informational messages requiring only prior express consent, consent can generally be established through the context of providing a phone number, such as during patient intake, though written confirmation is still advisable. For marketing messages, verbal consent alone does not satisfy the written consent standard in 47 CFR 64.1200(f)(9), which requires a written, signed agreement.
Does prior express written consent expire?
The TCPA rules do not set a fixed expiration date for consent, but consent is tied to the specific relationship and purpose it was given for. A common practice is to periodically refresh consent, especially for long-running marketing programs, and to always honor any opt-out immediately regardless of when consent was originally given.
Is an electronic signature valid for TCPA written consent?
Yes. 47 CFR 64.1200(f)(9)(ii) provides that signature includes an electronic or digital form of signature to the extent it is recognized as valid under applicable federal law, such as the E-SIGN Act, or under state contract law, so a properly disclosed checkbox or digital agreement can meet the written consent standard without a physical signature.
What is the penalty for texting without the correct consent type?
Statutory damages under the TCPA are $500 per violation, which can be increased up to $1,500 per violation for willful or knowing violations, under 47 USC 227(b)(3). Because each text can potentially count as a separate violation, the exposure from a mismatched or missing consent type scales with the number of messages sent.
Do healthcare organizations need written consent for appointment reminders?
Appointment reminders are generally treated as informational rather than marketing, so prior express consent, such as a patient providing their phone number during intake, is typically sufficient rather than the stricter written consent standard. If the same message also includes promotional content, it may shift into the marketing category and require prior express written consent instead.
Build consent handling into your messaging program
FRANSiS supports documented opt-in capture and opt-out handling so consent records match the message types actually being sent. Contact us to see how consent tracking fits into your TCPA compliance process.
