Consent-based calling exceptions

Consent can create an exception to a do-not-call restriction. For each later outreach, record the caller, number, channel, and method, then run the later opt-out check. Before dialing, match the record to the exact outreach and stop when a material part is unanswered.

Run the check in order

Use this sequence before the call enters a dial queue. Each step answers a different question, so passing one does not finish the review.

Stage	What you are trying to learn	Example question
Classify	what kind of outreach you plan to make	Is this a sales call, a service contact, a text, or an automated message?
Identify	which number and recipient restriction apply	Is this number on a do-not-call registry, and is it residential or wireless?
Verify permission	whether a recognized exception exists	What record shows that this person agreed to be contacted?
Match scope	whether the permission covers your caller and number	Who may contact this person, and which number may be used?
Check method	whether the planned technology creates another consent requirement	Will a live representative, autodialer, prerecorded voice, artificial voice, or text be used?
Check overrides	whether a later request or state rule blocks the outreach	Has this person asked our company to stop, or does the target state add a requirement?

Start with the outreach

Classify the purpose and method before reviewing the permission record. Permission for one contact type may leave another unresolved.

A telephone solicitation is the initiation of a call or message intended to encourage the purchase, rental, or investment in property, goods, or services.¹ FCC regulations prohibit telephone solicitations to residential subscribers whose numbers are registered on the National Do-Not-Call Registry.²

First determine whether the planned contact is a solicitation and whether the number falls within the restriction. For numbers on the registry, the TCPA recognizes prior express invitation or permission and an established business relationship as exceptions to the solicitation restriction.³

Test the permission

Use an exception only when the permission record fits the caller and number. A general customer record or a verbal recollection does not prove those details.

A call that otherwise meets the definition of a telephone solicitation is not considered a telephone solicitation if the called party provided prior express invitation or permission, the call was made under an established business relationship, or the caller has a personal relationship with the called party.⁴

For prior express invitation or permission, the signed written agreement must identify the caller, state that the consumer consents to contact, and specify the telephone number that may be called.⁵ Consent must be clear and unmistakable, and the consumer must understand that it covers telemarketing calls and texts.⁶

If another company, affiliate, or third party may make the contact, check whether the agreement identifies each party that may rely on the consent.⁷

Match the method

A DNC exception does not resolve every rule for the technology used in the outreach. Compare the permission record with the actual dialing method before approving the call.

For wireless numbers, telemarketing calls made with an automatic telephone dialing system or a prerecorded or artificial voice require prior express written consent under the TCPA.⁸ Telemarketing calls to residential numbers using a prerecorded or artificial voice also require prior express written consent.⁹

Review text workflows separately. Businesses using an automatic telephone dialing system or an artificial or prerecorded voice must obtain express written consent before sending text messages to consumers.¹⁰ The FCC has interpreted calls to include text messages,¹¹ while a Seventh Circuit decision held that text messages are not telephone calls under the TCPA's Do-Not-Call rules.¹² Keep the channel decision separate from the registry decision when the outreach crosses jurisdictions or uses text messaging.

Courts have differed on written-consent requirements. A Fifth Circuit decision held that telemarketing robocalls do not require written consent under the TCPA,¹³ while essentially every court had accepted and applied the FCC's prior express written consent requirement for nearly 15 years.¹⁴ Preserve the written-consent record for any automated or prerecorded campaign and confirm the rule that applies to the intended call before launch.

Check who supplied consent and where

Consent may pass through a lead source before it reaches the caller. Lead generators may collect consent for multiple businesses and pass those businesses the consent and contact information for potential consumers.¹⁵ Trace that path so the permission record still names the business making the contact.

The named caller and any permitted affiliates need review before launch, especially when the agreement came through a shared form.

Many states have mini-TCPAs that require compliance from businesses calling consumer-residents in those states, regardless of where the business is domiciled.¹⁶ Check the target state before relying on a federal exception.

What not to do

• Treat consent and an established business relationship as conditional. Consent must remain provable and current, established business relationship periods expire, and a company-specific do-not-call request overrides both.¹⁷
• Reject any form that leaves the caller or telephone number unclear. The written agreement must identify both.⁵
• Automated, prerecorded, or artificial voice calls can require prior express written consent for wireless and residential numbers, even when a DNC exception applies.^{8, 9}
• A lead generator's permission applies only to businesses the agreement identifies. The written agreement must identify affiliates or other third parties to which consent may apply.⁷
• Treat text and voice separately by jurisdiction. Authorities have taken different positions on whether text messages fall within the TCPA's Do-Not-Call rules.^{12, 11}
• Federal rules alone do not clear a campaign calling consumers in multiple states. Many states have mini-TCPAs that apply to businesses calling consumer-residents there, regardless of where the business is domiciled.¹⁶