When it comes to the TCPA’s express consent rules you DEFINITELY don’t want to be trusting GenAi.
These rules are fast evolving and failure to comply could cost you your business– literally.
Steven Rosenfeld moderated a killer panel on express consent at Law Conference of Champions IV. Those who attended received the absolute latest information on the subject from some of the best minds in industry. Those who didn’t missed out.
This post won’t dive as deep as they did but I hope it will provide some context in terms of where we are and where we are headed.
First principles, in order to use regulated technology (ATDS, RVM, prerecorded or artifiical voice message, GenAi) the TCPA requires the caller to have the “express consent” of the “called party.”
Complying with the TCPA is critical because failure to do so will result in a minimum fine of $500.00 per call– and these fines can be aggregated in massive TCPA class actions where billions of dollars are commonly on the line. And as the TCPA is one of the most hotly litigated areas of law– failing to comply will almost certainly land a company in major federal court litigation.
The evolution of the TCPA’s express consent rule is linked to the rise and fall of FCC power over the courts interpreting the TCPA.
Back in 2009 the Ninth Circuit Court of Appeals defined “express consent” to mean “consent that is clearly and unmistakably stated.” See Satterfield. In that case the court held a disclosure referencing “affiliates” did not authorize calls by any caller that was not a true corporate sibling of the party obtaining the consent– an early manifestation of the limitations of lead generation efforts in this space.
In 2013, however, the FCC created a distinction between calls made for informational purposes and those made for marketing purposes– informational calling could be done with presmed express consent anytime a consumer supplied a number to the caller for a purpose “closely related” to the purpose of the call, but marketing consent required express written consent with nine separate requirements (the Troutman Nine.)
For 12 years the case law developed following the two divergent paths the FCC set forth. Informational calls becoming easier and easier to make as courts expanded the idea of presumed consent to include calls made by agents and subagents and across multiple purposes and marketing calls becoming harder and harder to make as courts scrutinized lead generation forms and consent language flows with ever increasing ire.
Recently, however, the U.S. Supreme Court issued its ruling in McLaughlin gutting deference requirements to FCC orders under the Hobbs Act. When taken in conjunction with Loper Bright the courts suddenly had a wholly new cave walls to paint upon.
And paint they have.
In the few short months since McLaughlin was handed down courts have cast increasing doubt on the viability of the FCC’s dual approach to consent. The Fifth Circuit Court of Appeals has held directly that express written consent for marketing calls is not required by the TCPA’s express language and so the FCC’s requirements are invalid. A district court in Maryland has held the same. A district court in Deleware recently stopped short of making a similar ruling but seems inclined to do so.
On the other hand no courts have yet addressed the “presumed” consent rules in the informational context but those seem sure to fall as well. Callers must now have something representing a “clear and unmistakable” consent before making phone contact using regulated technology– including via SMS when an ATDS is used.
Yet several pieces of the puzzle remain missing.
While it appears written consent may no longer be needed and presumed consent may no longer be viable the precise contours of “express consent” have not been set forth by the courts.
For instance:
- Does the type of technology to be used by the caller (i.e. ATDS, AI, prerecorded calls, etc.) have to specified as part of the consent?;
- Does the specific caller need to be identified or merely the company on whose behalf of a call is made?;
- Does the purpose of permitted calls need to be identified (i.e. marketing vs. non marketing)?;
- Does the timing of calls need to be specific (i.e. calls may be made after hours, during business hours, or at any time)?;
- Can the consent be a condition of a good, service or credit offering?;
- What level of documentation is required to enforce a consent if writing is not required?
These questions and many others will need to be answered by the courts as the TCPA’s consent rules continue to evolve.
Alongside these issues, we can expect courts to scrutinize anew the identity of the “called party” that must provide “express consent.” Currently three appellate courts state the consent must come SOLELY from the subscriber of the phone. That means regular users on a shared or family plan may have viable TCPA claims even though they specifically consented to calls on the phone they use (but do not subscribe to). This means callers are required to assure they have consent from subscribers and not just users of phones– what a nightmare!
Bottom line is we can expect to see more TCPA class actions filed tracking the rise in uncertainty around the TCPA’s consent rules. If you’d like help with these rules–and you NEED to have these rules straight if you are attempting to dial outbound at scale–call Troutman Amin, LLP for assistance.
And if you’d like the latest TCPA news be sure to follow TCPAWorld and request a copy of the 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance. Its free and awesome!!
Chat soon.