"Express written consent" sounds like a description of any written agreement. In United States telemarketing it is a defined term, set out in the Federal Communications Commission's rule at 47 CFR 64.1200(f)(9), and a consent flow either meets the definition or does not.
This page describes what the rule says. It is not legal advice.
What is the definition?
One sentence, carrying four requirements:
The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
Unpacked, that is:
- An agreement in writing, not a verbal yes or an inference from behaviour.
- Bearing the signature of the person being called.
- Clearly authorising the seller to send advertisements or telemarketing messages by automated means, which has to be stated rather than implied.
- Naming the telephone number the person is authorising messages to.
The fourth is the one that quietly invalidates bulk consent. Consent is tied to a number the person gave for the purpose. A number obtained elsewhere and matched to the same person is not the number they authorised.
What has to be disclosed?
Two things, and the second is the one nobody writes:
(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
Requirement (B) is a substantive constraint on your product, not just on your copy. If marketing consent is required to complete a purchase, no wording fixes it. And a signup form that offers no way to proceed without ticking the marketing box is requiring it indirectly, which the rule anticipates.
Set the two disclosures against a typical checkbox: "I agree to receive updates and offers." It does not mention automated calling, it does not name the number, and it says nothing about the purchase condition. It is agreement to something, and it is not this defined term.
Does an electronic signature count?
Yes, and the rule says so rather than leaving it to inference:
(ii) The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.
So a web form, a checkout flow, or a signup screen can carry valid express written consent. What makes it valid is the content of what was agreed and the record of the agreement, not the medium.
That has a practical corollary: keep the evidence. The rule puts the burden on the caller, and the useful record is the one that reconstructs what the person actually saw. That means the disclosure text as rendered on the day, the timestamp, the number given, and the action taken, not a boolean.
What about the one-to-one consent rule?
It is not in the rule as it currently stands.
An FCC rule requiring consent to name a single identified seller, so that one form could not authorise a list of partners, was adopted and widely written about. The current text of the definition, quoted above, contains no such requirement, and a great deal of published guidance still describes it as being in force.
The point worth taking is procedural rather than substantive: this is an area where rules are adopted, litigated and vacated, and where secondary summaries date quickly. Read the current text rather than an article about it, and check the date on anything that tells you what the FCC requires.
Where does this leave a consent flow?
With a form that is more explicit than a marketer would choose, and a record that is richer than a flag.
A flow that meets the definition names automated messaging in the agreement text, shows the number being authorised, states that agreeing is not required to buy, and stores what was displayed alongside the consent itself. Once it exists, the rest of the TCPA obligations follow: the calling window, the revocation words, and the ten business days.
Consent obtained this way is also the strongest starting point for other regimes, since CASL and the European rules both ask for records of what was agreed and when. The definitions differ, so the same record does not automatically satisfy all three, but a system that stores provenance can answer each of them, and one that stores a boolean can answer none.