Express vs express written consent under the TCPA

One of the most common sources of TCPA confusion is that the law uses two different consent standards, and they sound almost identical. "Express consent" and "express written consent" are not interchangeable. Getting the distinction wrong is a frequent — and expensive — mistake. This is general information for outreach teams, not legal advice; your compliance team or counsel should sign off on how you apply it.

The two standards

Prior express consent is the lower bar. In many contexts, a person who knowingly provides their phone number to a business has given express consent to be contacted at that number about the transaction they were engaged in. This standard has historically been associated with informational, transactional, or non-telemarketing calls and texts — appointment reminders, delivery updates, account alerts, and similar.

Prior express written consent is the higher bar, and it is the one that matters most for outreach and sales teams. For marketing or promotional messages delivered using an automated telephone dialing system or an artificial or prerecorded voice, the TCPA generally requires a signed written agreement that meets specific disclosure requirements.

What "written consent" actually requires

Prior express written consent is not just "we have it in a spreadsheet." To count, the agreement generally needs to include:

• A clear statement that the person agrees to receive marketing calls or texts at the number they provided.
• Disclosure that those messages may be sent using an automated system.
• A statement that consent is not a condition of purchase — you cannot force someone to opt in to buy from you.
• The signature of the person consenting. An electronic signature (a checkbox, a typed name, a web form submission) can satisfy this if it is valid under the E-SIGN Act.

The consent should be specific and not buried. A pre-checked box, or consent hidden in dense terms nobody reads, tends to be exactly what plaintiffs' attorneys look for.

Why teams should usually default to written consent

The line between "informational" and "marketing" is thin and easy to cross. A shipping notification that also says "and here's 10% off your next order" has arguably become a marketing message. Because the cost of guessing wrong is $500 to $1,500 per message, many outreach programs simplify their risk by treating all outbound SMS and calls as if they require prior express written consent. It is a stricter internal rule than the law's floor, but it removes a category of judgment calls.

Keep the proof

Consent you cannot prove is, for practical purposes, consent you do not have. Record:

• When consent was captured (timestamp).
• How it was captured (the form, the exact disclosure language, the page).
• What the person agreed to (the scope of messages).
• The identifier tying consent to the specific phone number.

If you are ever challenged, this record is your defense. Store it in a way you can export and produce later.

How this maps to a real workflow

A defensible approach looks like this:

• Capture written consent at signup with the four elements above, and version your disclosure language so you know what each contact agreed to.
• Tag each contact with the consent type and timestamp.
• Scrub before you send against DNC data and your internal suppression list.
• Honor STOP account-wide and log it.
• Keep an exportable audit trail so consent and suppression history can be produced on request.

Fivra supports this pattern operationally — DNC screening runs before contacts are messaged, STOP replies suppress account-wide, and screening and send activity is written to exportable audit logs. Capturing and storing valid consent, and deciding which standard applies to your messages, remains your responsibility.

FAQ

What is the difference between express consent and express written consent?

Prior express consent is a lower standard, often satisfied when someone knowingly provides their number for a transaction, and has historically applied to informational or non-marketing contact. Prior express written consent is a higher standard — a signed, disclosed agreement — generally required for marketing messages sent with an automated system.

Do marketing texts need written consent?

Generally yes. Marketing or promotional SMS sent using an automated system typically requires prior express written consent, including disclosure of automated messaging and a statement that consent is not a condition of purchase. Confirm the specifics with your counsel.

Does an electronic checkbox count as a signature?

An electronic signature — such as a checkbox or web form submission — can satisfy the written consent requirement if it is valid under the E-SIGN Act and the disclosures are clear and not pre-checked or buried. How you implement it matters, so have it reviewed.

Can I require consent as a condition of purchase?

No. A core element of prior express written consent is that consent to receive marketing messages cannot be a condition of buying a product or service.

What records should I keep to prove consent?

Keep the timestamp, the method of capture, the exact disclosure language shown, the scope of what was agreed to, and the phone number it applies to. Store it so it can be exported and produced if challenged.

Should I just treat everything as marketing?

Many teams do, because the line between informational and marketing messages is easy to cross and the per-message penalties are high. Defaulting to written consent removes a category of risky judgment calls, but discuss the right policy with your compliance team.