What Is Express Written Consent? TCPA SMS Rules & Examples
Prior express written consent is the FCC's required standard for sending marketing SMS to US mobile numbers under the TCPA. It requires a clear, conspicuous disclosure naming the sender and message type, plus an affirmative, unbundled action (typically an unchecked checkbox) that is not a condition of any purchase — all retained as tamper-evident evidence.
Key takeaways
- Required for all marketing SMS to US cell phones under the TCPA.
- Must be a separate, unchecked, affirmative opt-in — never bundled with email or terms.
- Disclosure must name the sender, message type, frequency, and rates.
- Cannot be a condition of any purchase or service.
- Must be retained as tamper-evident proof: timestamp, IP, exact disclosure, ideally session replay.
Express Written Consent Definition
Prior express written consent is the FCC-defined standard (47 C.F.R. § 64.1200(f)(9)) for opting US consumers in to marketing calls and texts under the TCPA.
It requires a written agreement — including an electronic agreement — that:
- Bears the consumer's signature (a checkbox tick counts).
- Clearly authorizes the sender to deliver telemarketing messages by autodialer or prerecorded voice.
- Includes a clear, conspicuous disclosure of what's being agreed to.
- States that consent is not a condition of purchase.
What the FCC Requires (Word for Word)
A compliant opt-in surface must:
- Identify the sender by exact legal/brand name.
- State the type of message (marketing, promotional, etc.) clearly.
- Provide a separate, unchecked checkbox that the consumer must affirmatively tick — not pre-checked, not bundled with email or terms acceptance.
- State message frequency (e.g., "Msg frequency varies").
- Include "Msg & data rates may apply".
- Provide STOP/HELP instructions.
- State that consent is not a condition of purchase.
- Be retained with proof of what the user saw and when.
Patterns That Fail the Standard
These patterns are commonly cited in TCPA demand letters as failing the express written consent standard:
- Pre-checked SMS consent boxes.
- Bundled consent ("by checking this box you agree to Terms, Privacy, email, AND text").
- Implied consent via "by submitting this form you agree to receive texts."
- Conditional consent — making SMS opt-in a requirement to checkout, sign up, or download.
- Hidden disclosures — consent buried in a Terms link instead of shown next to the input.
- No retained proof — even valid consent is unprovable without timestamped, IP-logged records.
How to Prove Express Written Consent in Court
When you face a TCPA demand letter or class certification, you need:
- Timestamp of the opt-in (UTC).
- IP address and user agent of the device that opted in.
- Geolocation at time of consent (where possible).
- Exact disclosure text the user saw — not the current version of your form.
- The form action (which checkbox was clicked, in what order).
- A session replay of the opt-in interaction (highest-fidelity evidence).
- A SHA-256 hash of the record so tampering can be detected, ideally with a public verification URL.
This is the difference between a settled demand letter and a contested class certification.
Examples
Phone: [(415) 555-0142] [ ] I agree to receive marketing texts from Acme Co at the number above. Msg frequency varies. Msg & data rates may apply. Reply STOP to cancel, HELP for help. Consent is not a condition of purchase. View Terms & Privacy Policy.
Separate, unchecked, names sender + message type, includes rates/frequency/STOP/HELP, and the not-a-condition-of-purchase clause.
[x] By submitting this form, I agree to the Terms & Privacy Policy and to receive marketing emails and texts.
Pre-checked, bundled with email + Terms, no message frequency, no rates, no STOP/HELP, conditioned on form submission.
Frequently asked questions
Related reading
Related glossary terms
The Telephone Consumer Protection Act is a US federal law (47 U.S.C. § 227) that restricts marketing calls and texts to mobile phones, with statutory damages of $500–$1,500 per violation.
10DLC (10-Digit Long Code) is the US carrier-mandated framework for sending Application-to-Person SMS from local 10-digit numbers, requiring brand and campaign registration with The Campaign Registry.
Under TCPA, consumers can revoke SMS consent at any time by any reasonable means. Senders must honor the revocation — typically by adding the number to a suppression list — within 10 business days.