TCPA Consent: What Counts as Permission to Call or Text

You type your cell number into a free quote form, click the big button, and go make dinner. By morning your phone has rung eleven times, and every caller acts like you invited them.

Did you? That question sits at the center of TCPA consent. Under the Telephone Consumer Protection Act, many robocalls and automated texts are legal only if the caller had the right kind of permission first. Whether it did often comes down to where the fine print sat, whose names it listed, and who can prove what.

Our plain-English guide to the TCPA covers the basics, including the difference between prior express consent and prior express written consent. This article goes deeper into lead generation forms, “partners and affiliates” fine print, who has to prove consent, and two recent appeals court decisions that changed the rules.

What TCPA Consent Requires Under Federal Law

The statute, 47 U.S.C. section 227, bars most autodialed or prerecorded calls to cell phones unless the caller has “the prior express consent of the called party.” Congress never defined that phrase. The Federal Communications Commission filled in the details in its rules at 47 C.F.R. section 64.1200, and those rules add a stricter standard for marketing.

Under the FCC’s rules, a telemarketing robocall or robotext to a cell phone needs prior express written consent. Informational calls, like a pharmacy refill reminder, need only prior express consent. The FCC adopted the written standard in its 2012 TCPA order, and it took effect in October 2013.

TCPA Disclosure Requirements for Written Consent

The FCC’s definition in section 64.1200(f)(9) spells out what written consent has to include. In plain terms, the agreement needs these pieces:

A signature from the person being called. An electronic signature can count if federal law or state contract law recognizes it as valid.
Language that clearly authorizes the seller to deliver marketing calls or texts using an autodialer or an artificial or prerecorded voice.
The specific phone number the consumer is agreeing to be called at.
A clear and conspicuous statement that the consumer doesn’t have to sign, directly or indirectly, as a condition of buying anything.

“Clear and conspicuous” has its own definition. Under section 64.1200(f)(3), it means a notice that would be apparent to a reasonable consumer and set apart from the ad copy and other disclosures around it.

How Lead Generation Forms Collect TCPA Consent

A lead generator collects your contact information and sells it, often to several businesses at once. Insurance quote sites, loan comparison pages, and “find a contractor” forms commonly work this way. You think you’re asking for a price. The site treats your click as an opt-in for marketing calls.

The consent language usually sits near the submit button. It might read “By clicking Get My Quote, you agree to receive marketing calls and texts, including by autodialer and prerecorded message, from us and our partners.” Whether that creates valid consent depends heavily on how the page was built.

Where the Fine Print Sits Matters

In Sullivan v. All Web Leads, Inc., a federal court in Illinois looked at a health insurance quote site that put its consent language in small print below the Submit button. The consumer said he never saw it. The court refused to dismiss his case, finding that the page as he described it didn’t show reasonable notice, much less a clear and conspicuous disclosure.

Courts tend to ask practical questions. How big was the text? Was it above or below the button? Would a normal person filling out the form expect a sales call at all?

Key takeaway: Courts look at a consent form the way a real consumer would have seen it, not just at what the words say. Language a reasonable person would miss is a shaky foundation for TCPA consent.

The “Partners and Affiliates” Fine Print Problem

Many lead forms don’t name the companies that will call. They say “our partners” or “marketing affiliates” and link to a separate page. Sometimes that page lists a handful of businesses. Sometimes it lists hundreds.

The FCC’s written consent definition describes an agreement that clearly authorizes “the seller” to call. If the company that called is name number 214 on a page the consumer never opened, a court may question whether the agreement clearly authorized that particular seller. Outcomes turn heavily on the specific facts.

Do Not Call rules add another wrinkle. For numbers on the National Do Not Call Registry, section 64.1200(c)(2)(ii) says a seller relying on permission needs a signed, written agreement stating the consumer agrees to be contacted by that seller. A vague reference to unnamed partners fits awkwardly with that language.

Leads also get resold, and a company that buys one secondhand may struggle to show the original consent ever reached it. A business can also sometimes be held responsible for calls a lead generator places on its behalf, depending on how closely the two work together.

Who Has to Prove TCPA Consent?

This part surprises people. In a TCPA lawsuit, the consumer generally doesn’t have to prove they never consented. Federal courts usually treat consent as an affirmative defense, which means the caller has to prove it had permission.

The Ninth Circuit said so directly in Van Patten v. Vertical Fitness Group, holding that express consent is a defense the defendant must prove. The FCC’s 2012 order points the same way. It says that if a question about written consent comes up, the seller bears the burden of showing a clear and conspicuous disclosure and unambiguous consent.

The burden generally sits with the caller. When a company says a consumer agreed to its calls, it’s the company’s job to produce the proof.

What Consent Evidence Usually Looks Like

When a company claims a consumer opted in online, it typically tries to produce records like these:

A timestamp showing when the form was submitted.
The IP address and device or browser details tied to the submission.
A screenshot, archived copy, or session recording of the page as it looked that day.
The exact consent wording and the list of companies it named at that moment.

If a company bought a lead from a third party and can’t get those original records, proving consent gets much harder.

The Eleventh Circuit Strikes Down the One-to-One Consent Rule

In late 2023, the FCC tried to shut down the “partners” model. Its new rule would have limited written consent to one identified seller at a time and required the calls to be logically and topically connected to the interaction where the consumer gave consent.

The rule never took effect. On January 24, 2025, the Eleventh Circuit decided Insurance Marketing Coalition Ltd. v. FCC and vacated both requirements as beyond what the TCPA allows.

The court gave “prior express consent” its ordinary meaning. A consumer who clearly and unmistakably agrees can consent to calls from more than one company at once, even about unrelated topics.

1 business dayThe Eleventh Circuit vacated the one-to-one consent rule on Friday, January 24, 2025. The rule had been set to take effect the following Monday.

The FCC didn’t keep fighting. In August 2025 it deleted the one-to-one language and restored its earlier definition, so the rule is gone nationwide, not just in Florida, Georgia, and Alabama.

That doesn’t mean anything goes. The basic question stayed. Did the consumer clearly and unmistakably agree to calls from this company? The fine print and partner list issues above still decide a lot of cases.

Bradford v. Sovereign Pest Control: Does Consent Have to Be in Writing?

A year later, the Fifth Circuit went further. On February 25, 2026, it decided Bradford v. Sovereign Pest Control of TX, Inc. and held that the TCPA requires only prior express consent, oral or written, for autodialed or prerecorded calls to a cell phone, whether the call is telemarketing or informational.

Radley Bradford signed a pest control service plan and listed his cell number so the company could reach him. The company later placed prerecorded calls to schedule renewal inspections, and he renewed his plan four times. Then he sued, arguing the calls were telemarketing made without his prior express written consent.

The court looked at what “express consent” meant in 1991, when Congress passed the law. It could be given in writing or out loud. Because the statute never mentions writing, the court found no basis for the FCC’s written requirement. Bradford consented by providing his number without limiting the calls and never objecting.

The ruling builds on two Supreme Court decisions. Loper Bright Enterprises v. Raimondo ended the practice of courts deferring to an agency’s reading of an unclear statute. McLaughlin Chiropractic Associates, Inc. v. McKesson Corp. held that district courts in TCPA enforcement cases aren’t bound by the FCC’s interpretation and must decide what the statute means for themselves.

A Quick Example: Luis and the Lawn Care Upsell

Say Luis signs up for lawn care in Baton Rouge and tells the rep on the phone, “Sure, call my cell about my service.” Months later, prerecorded calls start pitching a pricier weed and pest package. Under the FCC’s rule, those marketing robocalls need signed written consent, and Luis never signed anything.

In federal court in Louisiana, Bradford changes the question to whether Luis gave prior express consent, and spoken permission can count. Scope still matters. Whether an upsell pitch fits inside “about my service” is the kind of fact question these cases turn on.

How TCPA Consent Rules Differ by Federal Circuit and State

Bradford binds federal courts in Texas, Louisiana, and Mississippi, the three states in the Fifth Circuit. Courts elsewhere can find its reasoning persuasive or reject it. The FCC’s written consent rule is still on the books, and courts outside the Fifth Circuit may keep applying it.

State law adds another layer. Several states have their own “mini-TCPA” laws, and some are stricter than Bradford’s reading of federal law. The Florida Telephone Solicitation Act, Fla. Stat. section 501.059, bars unsolicited sales calls that use an automated dialing system or a recorded message without the called party’s prior express written consent.

Heads up: One appeals court ruling doesn’t rewrite consent rules everywhere. The same call can be judged under different standards depending on where the consumer lives, which court hears the case, and which state laws apply.

A Hypothetical: Nina and the Moving Quote Form

Nina lives in Columbus, Ohio, and is moving to Charlotte. On a moving quote comparison site, she enters her name, cell number, and move date, then clicks “See My Quotes.” Below the button, in small gray text, a sentence says she agrees to marketing calls, including prerecorded calls, from the site “and our Marketing Partners.” Those words link to a list of 180 companies.

Over two weeks, three moving companies call her. A home warranty company on the list places six prerecorded sales calls. A debt relief company that isn’t on the list at all places four more, using information it bought from another lead seller.

Here’s how the consent analysis generally breaks down for each group:

The movers. These calls match what Nina was trying to do. The consent language still has to hold up, and fine print below the button is the kind of design courts have questioned.
The home warranty company. After the Eleventh Circuit’s ruling, an unrelated topic doesn’t automatically defeat consent. The question is whether gray text under a button, linking to 180 names, clearly authorized this seller to call.
The debt relief company. It isn’t named anywhere Nina could have seen. Stretching her consent to a secondhand lead buyer would be a steep climb.

Each company claiming consent would generally have to prove it with records like the page version, timestamp, and IP address. Each prerecorded call made without valid consent could count as a separate violation. For the 10 non-mover calls, that’s $5,000 at $500 per call, or up to $15,000 if a court found the violations willful or knowing.

Ohio sits in the Sixth Circuit, so Bradford wouldn’t bind a federal court hearing Nina’s case. Even in Texas, it wouldn’t automatically rescue these callers. Bradford involved a customer who gave his number directly to a company he did business with, not consent buried in fine print.

Common Questions About TCPA Consent

What is TCPA consent language?

It’s the wording a business uses to get permission for automated or prerecorded calls and texts. For marketing robocalls, the FCC’s rules call for written language authorizing the seller to call a specific number and stating that agreeing isn’t a condition of purchase, displayed clearly and conspicuously.

Is giving a company my phone number the same as consent?

Sometimes. Since 1992, the FCC has said that giving out a number as a way to be reached generally invites calls there. Context sets the limits. In Van Patten, the Ninth Circuit looked at why the consumer handed over his number to decide what his consent covered.

Can one online form give consent to dozens of companies?

After Insurance Marketing Coalition, federal law doesn’t flatly forbid it. But each company that calls still has to show the consent clearly covered it, and long, hidden partner lists invite challenges.

Does TCPA cell phone consent have to be in writing?

Under the FCC’s rule, marketing robocalls and robotexts to cell phones need written consent, while informational calls don’t. Bradford rejected the written requirement, but it binds only federal courts in Texas, Louisiana, and Mississippi, and state laws like Florida’s can still require it.

Can a company require consent before I buy something?

Not under the FCC’s written consent rule. The disclosure has to tell the consumer that signing isn’t required, directly or indirectly, as a condition of purchasing any property, goods, or services.

Putting It Together

TCPA consent is where many robocall and robotext disputes are won or lost. Lead forms, partner lists, and fine print placement shape whether permission really existed, and the caller generally has to prove it. Two recent rulings changed the details, with the Eleventh Circuit ending the one-to-one rule nationwide and the Fifth Circuit rejecting the written consent requirement in its three states.

This article is for educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. For advice on your specific situation, consult a licensed attorney in your state.