Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.

Under the TCPA, a caller cannot use an ATDS (“automatic telephone dialing system”) to place a call or send a text message to a cell phone without the recipient’s prior express consent. The type of consent depends on the nature of the call or text.

Marketing and Advertising Calls

Under the TCPA, prior express written consent (“PEWC”) by the recipient is required for autodialed marketing/advertising calls or texts to a cell phone. The TCPA is a consumer protection statute, and consistent with that purpose the burden to establish PEWC is on the caller, and the terms “advertisement” and “telemarketing” are defined very broadly in the Code of Federal Regulations (“CFR”). A prudent rule of thumb for businesses is that when a call creates a basic or general implication that it is made for a commercial purpose the TCPA will apply.

PEWC must be established by a written agreement signed by the call recipient. The written agreement must include a clear and noticeable disclosure informing the consumer, at a minimum, that (1) the consumer is not required to sign the agreement as a condition for purchasing something and (2) by signing agreement the consumer is authorizing autodialed telemarketing/advertising calls or texts to his or her cell number.

There is no specific format required for the PEWC, and so long as the two requirements stated in the preceding paragraph are met, a shorter and simpler format is better.

Non-Marketing and Non-Solicitation Calls

Non-marketing calls have much less stringent consent requirements. While prior express consent is required to place autodialed, non-solicitation calls or texts to a cell phone, consumers can consent to receive non-marketing calls by giving prior oral or written consent or by giving his or her cell number to the person initiating the call. In other words, all that has to occur is for the consumer to provide his or her cell number to a company. No signature is required.

Consent revocation, of course, is requested by the consenting party, the consumer. Generally, revocation of consent may be accomplished either orally or in writing by any reasonable method.

Revocation of PEWC is a very involved and evolving area. There are numerous court decisions from various jurisdictions on this topic, and the decisions often are inconsistent in important ways. Under some circumstances, consent revocation can be oral. However, when the calling business and the consumer entered into a contractual provision concerning consent to be called, that consent can be irrevocable, according to one federal circuit court. 

Once a customer has provided PEWC, it does not expire.