What Does Prior Express Written Consent Mean Under the TCPA? A Guide for Lead and Call Buyers in 2026
By Miguel Chavez Chacon, Founder, MGM ScaleCraft
Quick answer: prior express written consent (often shortened to PEWC) is the FCC's written-agreement standard for autodialed or prerecorded telemarketing calls and texts. Under 47 CFR 64.1200(f)(9), it is a signed written agreement that clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice to a named telephone number. The agreement must clearly and conspicuously disclose that signing authorizes those calls and that the person is not required to sign as a condition of buying anything. An electronic or digital signature counts if it is valid under federal law or state contract law. For lead and call buyers, the practical point is proof: when a dispute arises, the seller bears the burden of showing that the disclosure was provided and that unambiguous consent was obtained.
What is prior express written consent under the TCPA?
The definition in force today is the one the FCC adopted in 2012 and reinstated after the one-to-one rule was vacated. The eCFR text of 47 CFR 64.1200(f)(9), read on November 6, 2026, says 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."
Two disclosures must sit inside that written agreement, and both must be clear and conspicuous:
- By signing, the person authorizes the seller to deliver telemarketing calls using an autodialer or an artificial or prerecorded voice.
- The person is not required to sign the agreement, directly or indirectly, or to agree to enter into it as a condition of purchasing any property, goods or services.
- "Signature" includes an electronic or digital form of signature recognized as valid under applicable federal law or state contract law.
When do you need prior express written consent vs prior express consent?
The TCPA and the FCC's rules use two different consent levels. Prior express written consent is the stricter one. Under 47 CFR 64.1200(a)(2), it is required to initiate a telemarketing or advertising call with an autodialer or an artificial or prerecorded voice to wireless numbers (and other lines listed in (a)(1)). Under 64.1200(a)(3), it is also required for artificial or prerecorded telemarketing messages to residential lines.
Prior express consent — without the "written" requirement — appears elsewhere in the same section for certain non-telemarketing or limited informational calls. Do Not Call rules are separate again: under 64.1200(c)(2)(ii), a seller that wants to call a number on the National Do Not Call Registry needs the subscriber's prior express invitation or permission in a signed, written agreement that "states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed."
In practice, most buyers of form leads who plan to autodial, use a prerecorded message or send marketing texts capture written consent that meets the PEWC definition, because it covers the strictest common use case. Have counsel map your dialing technology and channels to the right standard before you buy.
What must a prior express written consent agreement include?
When the FCC adopted the PEWC definition in FCC 12-21 (published June 11, 2012), it said the written consent must be signed and sufficient to show that the consumer received a clear and conspicuous disclosure of the consequences of providing consent — that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller — and, having received that information, agrees unambiguously to receive such calls at a telephone number the consumer designates. The Commission also said that "should any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained."
Use this checklist against any sample lead before you scale a buy:
| Element | What the rule asks for | What a usable lead record shows |
|---|---|---|
| Writing | An agreement in writing | The disclosure text as the consumer saw it on the page or device, not a later rewrite |
| Signature | A signature; electronic or digital counts if valid under federal or state law | A click-to-accept, checkbox tied to the disclosure, e-sign or similar action captured with the form |
| Seller authorization | Clear authorization for the seller to deliver or cause delivery of ads or telemarketing by autodialer or artificial/prerecorded voice | Your company (or the named sellers) identified in the disclosure or a dated partner list |
| Telephone number | The number the signatory authorizes those messages to | The exact number entered on the form, matching the number you will dial or text |
| Call-type disclosure | Clear and conspicuous notice that signing authorizes autodialed or prerecorded telemarketing calls | Language next to the submit action, not buried only in a footer or terms link |
| No-purchase-condition disclosure | Clear and conspicuous notice that signing is not required to buy anything | The same disclosure block the consumer saw at opt-in |
| Proof of timing | Consent before the first covered call or text | A timestamp that precedes your first outreach |
Who is the "seller" when you buy leads?
The FCC defines seller in 47 CFR 64.1200(f)(10) as "the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." In a typical lead purchase, that is the buyer that will call or text the consumer — an insurance agency, lender or contractor — not the publisher that ran the form.
That definition is why lead buyers ask whether the disclosure names them. A form that authorizes only the publisher, or that points to an undated "marketing partners" list you cannot reconstruct, is harder to defend when the claim arrives. For Do Not Call claims, the registry exception in 64.1200(c)(2)(ii) is explicitly seller-specific: the written agreement must say the consumer agrees to be contacted by "this seller."
Is one-to-one consent still required in 2026?
No. The FCC's December 2023 one-to-one consent rule never took effect. The Eleventh Circuit vacated it on January 24, 2025 in Insurance Marketing Coalition v. FCC. The FCC then removed the vacated language and reinstated the prior PEWC definition in 47 CFR 64.1200(f)(9), effective August 29, 2025. Under the current federal rule, a consumer can consent to more than one seller in a single agreement, as long as the consent is clear and unmistakable.
That does not make PEWC optional, and it does not make thin partner lists easy to defend. Many buyers still require seller-specific consent as a contract term because it produces a stronger record. Our status guide walks the court timeline, the reinstated definition and the November 25, 2026 revocation changes in more detail.
What consent records should a lead buyer keep?
A PEWC definition is only useful if you can produce the record. The FTC's Telemarketing Sales Rule, at 16 CFR 310.5, requires sellers and telemarketers to keep most telemarketing records for 5 years. A complete consent record under 310.5(a)(8) includes the person's name and telephone number, a copy of the request for consent "in the same manner and format in which it was presented," the purpose for which consent was requested and given, a copy of the consent provided, and the date consent was given.
That FTC rule is not what a TCPA plaintiff sues under, but it is a useful benchmark for what a usable lead file looks like. In practice, buyers also keep:
- A TrustedForm certificate or Jornaya LeadiD that resolves to the same phone number and form version you were sold.
- The disclosure language and form version in use on the submission date.
- Your own pre-dial verification log: certificate checked, number matched, scrubbed, then dialed.
- Opt-out and internal do-not-call records for that number, with dates.
What changes for consent revocation on November 25, 2026?
Prior express written consent can be revoked. An FCC order published in the Federal Register on October 26, 2026 (91 FR 67214) amends 47 CFR 64.1200(a)(10), effective November 25, 2026. Under the amended rule, callers may designate an exclusive means to revoke consent — an automated interactive voice or key-press opt-out on a call, a reply text using one of the standardized words (stop, quit, end, revoke, opt out, cancel or unsubscribe), and/or a website or telephone number the caller designates — if that method is clearly and conspicuously disclosed on the call or in the text. Callers that designate one of those exclusive means are not required to process revocations made by other means. Callers that do not designate an exclusive means must still process revocation requests made by any reasonable means.
Two more points from the same order matter for buyers: a revocation made in response to an informational (non-telemarketing) call or text can be limited to that category of informational messages, and revocation requests must still be honored within a reasonable time not to exceed ten business days. Ask every vendor how opt-outs reach you and whether their stack will be ready for the November 25 effective date.
How MGM ScaleCraft captures and delivers consent
We sell exclusive, TCPA-documented pay-per-call and pay-per-lead traffic to insurance, mortgage/HELOC, home-services and financial buyers. As our compliance overview states:
- Every lead and call originates from a consumer flow with a clearly disclosed express-written-consent step; the consent language, the branded caller and the channels (phone, SMS, email) are disclosed before opt-in.
- Consent scope is buyer-specific, not blanket.
- A TrustedForm certificate or Jornaya LeadiD is attached to every lead, pulled fresh at submission and available in every delivery format we support.
- Timestamped consent records are retained for the applicable regulatory window; do-not-call and revocation requests are honored across every owned property.
- Calls and leads come from our own consumer brands, with media bought in-house. Nothing is passed to a second buyer.
Review your consent stack with a partner briefing
If you are rewriting disclosures, checking whether purchased leads meet the PEWC elements above, or preparing for the November 25, 2026 revocation rule, book a partner briefing and we will map consent language, certificates and retention against your dialing plan. For the status of the vacated one-to-one rule, see our FCC guide. For the questions to ask any vendor before the first buy, see the Lead Vendor Due Diligence Checklist.
FAQs
What does prior express written consent mean under the TCPA?
It is a signed written agreement that clearly authorizes the seller to deliver advertisements or telemarketing messages using an autodialer or an artificial or prerecorded voice to a named telephone number. The agreement must clearly and conspicuously disclose that signing authorizes those calls and that the person is not required to sign as a condition of purchase. Electronic signatures can count. See 47 CFR 64.1200(f)(9).
Is prior express written consent the same as prior express consent?
No. Prior express written consent is the stricter written-agreement standard the FCC requires for autodialed or prerecorded telemarketing to wireless numbers and for prerecorded telemarketing to residential lines. Prior express consent is a lower standard used for some non-telemarketing or limited informational contacts. Map your channels with counsel before you buy.
Do lead buyers still need one-to-one consent in 2026?
No federal one-to-one mandate is in effect. The FCC rule that would have required it was vacated in January 2025 and removed from the CFR effective August 29, 2025. Prior express written consent still applies in full. Many buyers still require seller-specific consent as policy because it is easier to prove.
Who has the burden of proving consent?
When the FCC adopted the PEWC definition in FCC 12-21 (June 11, 2012), it said that if any question about consent arises, the seller bears the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained. In a lead buy, the company that places the call or sends the text is typically the party that must produce that proof.
How long should consent records be kept?
The FTC's Telemarketing Sales Rule generally requires sellers and telemarketers to keep telemarketing records, including complete consent records, for 5 years (16 CFR 310.5). Private TCPA claims often arrive years after the call, so 90-day certificate storage is usually too short. Keep the disclosure, the certificate and your verification log for the full window.
What changes on November 25, 2026?
An FCC order published October 26, 2026 lets callers designate an exclusive way to revoke consent (automated call opt-out, standardized reply-text words, or a designated website or phone number), if clearly disclosed. Informational opt-outs can be limited to that category. Revocations must still be honored within 10 business days. Effective date: November 25, 2026.
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