Prior Express Written Consent: What the FCC Definition Requires in 2026

The table gives the short version with the source for each row. The sections after it go through the same points with the text.

Paragraph numbers are those shown in the Cornell Legal Information Institute copy of the rule in November 2026. That copy flags an amendment published at 91 FR 67219 on 26 October 2026, so check the current text before relying on a paragraph number.

The rule defines prior express written consent as 'an agreement, in writing, bearing the signature of the person called' that clearly authorizes the seller to deliver, or cause to be delivered, advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. The agreement must include the telephone number to which the person authorizes those messages.

Two disclosures have to appear in the agreement, clearly and conspicuously. The first is that by signing, the person authorizes the seller to deliver those automated or prerecorded marketing calls. The second is that the person is not required to sign the agreement, directly or indirectly, or to agree to it as a condition of purchasing any property, goods or services.

Read closely, the definition ties consent to three things: a person, a number and a seller. A form that collects a phone number without naming who will call, or a list bought without the agreement behind it, leaves one of the three unproven.

The statute itself, at 47 U.S.C. 227(b)(1), bars calls to mobile numbers that use an automatic telephone dialing system or an artificial or prerecorded voice unless the call is an emergency or has 'the prior express consent of the called party'. It bars artificial or prerecorded voice calls to residential lines on similar terms. The statute does not use the word written.

The FCC's rule adds the written tier. Paragraph (a)(2) covers autodialed or prerecorded calls to mobile numbers and other protected lines that include an advertisement or constitute telemarketing. Paragraph (a)(3) covers artificial or prerecorded voice calls to residential lines that do the same. Both require 'the prior express written consent of the called party'.

AI voices fall inside this. In its declaratory ruling of February 2024, FCC 24-17, the Commission confirmed that calls using AI technologies that generate human voices are artificial or prerecorded voice calls. A footnote to that ruling adds that if such calls introduce an advertisement or contain telemarketing, the rules require prior express written consent.

Paragraph (f)(9)(ii) says the term signature includes 'an electronic or digital form of signature' to the extent that form is recognized as a valid signature under applicable federal law or state contract law. One such federal law is the E-SIGN Act. Its general rule, at 15 U.S.C. 7001(a), is that a signature, contract or other record relating to a transaction in interstate commerce may not be denied legal effect solely because it is in electronic form.

The FCC rule does not list which actions qualify. Florida's statute does. The Florida Telephone Solicitation Act defines signature to include an act that demonstrates express consent, including checking a box indicating consent or responding affirmatively to a text message.

The signature is one element of several. The definition also asks whether the disclosures were clear and conspicuous, and showing that means producing the page or message as it appeared when the person acted. That is a question of records.

The FCC had adopted a narrower definition aimed at lead generation. Kelley Drye summarized its two parts: consent would have to be specific to no more than one identified seller, and the calls would have to be logically and topically associated with the interaction that prompted the consent. The rule was due to take effect on 27 January 2025.

It did not. On 24 January 2025 the Eleventh Circuit, in a challenge brought by the Insurance Marketing Coalition, held that the FCC exceeded its statutory authority because the new restrictions conflicted with the ordinary meaning of prior express consent. Kelley Drye reported that the FCC's Consumer and Governmental Affairs Bureau had postponed the effective date shortly before the ruling and said the previous written consent requirements remain in effect.

The amendment history on the Cornell copy of the rule lists a change published at 90 FR 42138 on 29 August 2025. A vendor timeline we reviewed describes an FCC order of 14 July 2025 restoring the earlier text. We did not open the FCC order itself, so treat those two dates as reported. The practical result is not in doubt: a consent form may list more than one seller under the federal definition, and each seller that calls still has to show the person agreed to be called by it.

Bradford v. Sovereign Pest Control of Texas was decided on 25 February 2026. According to the Duane Morris summary, a customer gave a pest control company his phone number orally when he signed a service contract, and later received prerecorded calls about renewal inspections. He argued the calls were telemarketing that needed written consent. The Fifth Circuit held that the FCC lacked statutory authority to require written consent for prerecorded telemarketing calls, because the statute's text asks only for prior express consent.

The summary places the decision after McLaughlin Chiropractic Associates v. McKesson, the 2025 Supreme Court ruling that courts are not bound by the FCC's reading of the statute. It also notes limits. The Fifth Circuit is the only federal appeals court to take this approach, and the authors describe the result as a patchwork of standards across jurisdictions.

Three points keep the ruling in proportion. Consent is still required in the Fifth Circuit; only its form changed. The FCC's definition remains in the Code of Federal Regulations. And state statutes with their own written consent definitions, such as Florida's, do not depend on the FCC's authority. Which standard governs a given call is a question for counsel.

Paragraph (a)(10) of the rule says a called party may revoke prior express consent, 'including prior express written consent', by using any reasonable method to clearly express a desire not to receive further calls or text messages. Requests must be honored within a reasonable time not to exceed ten business days from receipt.

This paragraph is changing. Nelson Mullins reports that FCC order 26-67, adopted on 30 September 2026 and published in the Federal Register on 26 October 2026, takes effect on 25 November 2026. By its summary, an opt-out given in response to a marketing call or text revokes consent to all future marketing robocalls and robotexts from that caller. Senders of informational messages may designate certain exclusive opt-out methods if they disclose them. Seven reply keywords must be honored for texts, and the ten-business-day limit stays.

Florida Statutes 501.059 defines prior express written consent for telephonic sales calls, a term that covers calls, text messages and voicemail transmissions made to solicit a sale. The agreement must bear the called party's signature, clearly authorize the calls, texts or voicemails, include the telephone number, and carry a clear and conspicuous disclosure that the person is not required to sign as a condition of purchase.

The Florida definition matters for two reasons. It applies to calls made with 'an automated system for the selection and dialing of telephone numbers', which is worded differently from the federal autodialer definition. And it stands on state law, so a federal court's view of the FCC's authority does not remove it.

The list below is drawn from the FCC definition and from the FTC's Telemarketing Sales Rule. That rule, at 16 CFR 310.5(a)(8), asks sellers and telemarketers to keep records of express consent, including the person's name and phone number, a copy of the consent request, its purpose, a copy of the consent given and the date. The general retention period in that section is five years.

A business that relies on consent needs to be able to show it. A form that has since been redesigned, with no saved copy of the earlier version, is one way that record goes missing.

• The exact consent wording and the page, form or message it appeared on
• The seller or sellers named in that wording
• The telephone number the person entered or confirmed
• The action taken: a typed name, a ticked box, a button, a reply
• The date and time, and the device or address details captured with it
• The statement that agreeing is not a condition of purchase, as displayed
• The source of the lead, if another company collected the consent
• Any later withdrawal, with its date and the date contact stopped