TCPA Consent: What Counts as "Express Written Consent" to Text

Here's the sentence that decides whether your texting program is legal or a liability: before you send automated marketing texts to a customer's phone, the TCPA — the Telephone Consumer Protection Act, the federal law governing business calls and texts — requires their prior express written consent. Skip it and every automated text you send is a potential violation. Get it right and the whole system runs clean.

This is part of Pillar A: Capture Every Lead, the compliance companion to the complete missed-call text-back setup guide. It is general information about how the law works, not legal advice — the compliance landscape has real teeth, so read your situation carefully and talk to an attorney if you're unsure.

The two consent tiers (this is the key)

The TCPA doesn't have one consent standard — it has two, and which one applies depends on what you're texting:

• Prior express consent (the lower bar): applies to transactional/informational texts — appointment confirmations, "tech is on the way," invoice receipts, service updates. If a customer gave you their number in the normal course of business (booking a job, requesting a quote), you generally have consent for texts closely related to that transaction.
• Prior express WRITTEN consent (the higher bar): applies to marketing texts sent by automated systems — promotions, reactivation campaigns, "spring tune-up special" blasts. This requires a clear, documented agreement to receive marketing texts, and it's where contractors get tripped up.

The practical rule: your missed-call text-back reply, your appointment reminders, and your "tech is on the way" texts live under the lower bar (they're transactional). Your reactivation campaigns, seasonal promotions, and any marketing blast live under the higher bar (written consent required). Know which texts are which before you build anything.

What "express written consent" actually requires

Despite the name, "written" doesn't mean pen on paper — electronic agreements count. What matters is that the agreement is clear, specific, and documented:

• Clear authorization to be texted. The person must agree to receive texts at the specific number. Vague "contact me" language is weak; "text me at this number" is strong.
• Disclosure of what they'll get. The consent should describe the kinds of texts — marketing messages, appointment reminders, promotional offers.
• The number identified. Consent attaches to a specific phone number, not a person in the abstract.
• Not a condition of purchase. You cannot require someone to agree to marketing texts to buy your service. The consent must be genuinely optional.
• Documented and stored. You need to prove you had it. Screenshots of the form, timestamps, and the exact language shown — kept where you can find them.

What qualifies (the good list)

• A website form with an unchecked consent checkbox. The gold standard: "Yes, [Business Name] may send me marketing text messages at the number provided. Message/data rates may apply. Reply STOP to opt out." Unchecked by default — the customer actively checks it.
• A texted keyword opt-in. "Text JOIN to [number]" on your truck, invoice, or website. The reply confirming is the written record.
• A paper or tablet form at the job site. A checkbox on the service agreement or a tablet signature screen that includes texting consent. Common for maintenance-agreement signups.
• A verbal agreement that's properly logged. Weaker, but "customer agreed to texts on the call" noted in the CRM with a timestamp beats nothing — for transactional texts, not marketing blasts.

What does NOT qualify (the trap list)

• A pre-checked checkbox. If the box is already checked and the customer has to uncheck it, that's not express consent — it's the opposite. Pre-checked boxes are one of the most common violations.
• "They gave me their number." Handing you a number to schedule a repair is consent for texts about the repair. It is not consent for marketing blasts six months later.
• Bundled consent. Hiding texting consent inside a wall of terms, or making it a condition of getting the quote. Consent must be separate and optional.
• An old list with no consent records. That spreadsheet of "leads from 2019" with no record of how they opted in? You cannot legally text-market to it. The records are the consent — no records, no consent.
• Someone else's list. Purchased lists, shared lists, the previous owner's customer file. You did not get consent from these people; buying the list doesn't transfer it.

How to capture consent on your website form

This is the single highest-value fix for most contractors, because your website is where most new numbers arrive. Here's the pattern:

The critical details: unchecked by default, separate from any other checkbox, clearly optional, and the language names texts specifically. Store the timestamp, the IP, and the exact language shown with the submission. Your form tool or CRM should capture this automatically — verify that it does.

Consent for the texts you already send

Audit your current texting against the two tiers:

• Missed-call text-back: transactional — the customer just called you. The inbound call is the consent event for a reply about their inquiry. Keep it about their inquiry; don't append a marketing pitch to it.
• Appointment confirmations and en-route texts: transactional — tied to the scheduled service. Covered by the booking relationship.
• Review requests after a job: transactional-adjacent — tied to the completed service. The safer practice: keep the ask about their experience, not a disguised promotion.
• Reactivation and promotional campaigns: marketing — written consent required. This is the tier that needs the checkbox, the keyword opt-in, or equivalent.

The gray-zone habit to kill: appending "by the way, we're running a spring special…" to a transactional text. Mixing marketing content into transactional messages is how a compliant text becomes a non-compliant one.

The records to keep

Consent you can't prove is consent you don't have. For every number you text-market to, keep:

• How they opted in (form checkbox, keyword, in-person form).
• When they opted in (timestamp).
• What they saw (the exact consent language — save a screenshot or versioned copy).
• What they agreed to (transactional only, or marketing too).

Keep these records as long as you text the number, plus a reasonable period after they opt out. Most texting tools log opt-ins automatically — but verify the logs exist and export them periodically. If you ever switch tools, migrate the consent records with the contacts.

Opt-outs and the consent lifecycle

Consent isn't permanent. When someone replies STOP (or QUIT, END, CANCEL, UNSUBSCRIBE — your tool should recognize the standard keywords), consent is revoked immediately. Your system must suppress all future marketing texts to that number automatically, and you cannot text them again for marketing unless they explicitly re-opt-in through a fresh consent event. The one narrow exception: a single confirmation text acknowledging the opt-out itself. See the full opt-out mechanics in the STOP-handling guide.

Compliance note

This post is general information about TCPA consent concepts, not legal advice. The TCPA, FCC rules, and state laws (some stricter than federal — see the state texting laws overview) evolve, and how they apply to your specific business depends on facts only an attorney can evaluate. Before launching marketing text campaigns, consider a one-time review with a telecom/marketing attorney — it's cheap insurance against very expensive violations. Separately, all business texting requires 10DLC business-texting registration (the carriers' registration for texts sent by software from standard numbers; 1–7 day approval, ~$15–$20 in carrier/campaign fees), and marketing texts must respect TCPA quiet hours (no texts before 8am or after 9pm in the recipient's local time).

Related guides in this series

Consent is the foundation of Pillar A: Capture Every Lead — get this right before you build the missed-call text-back or any other texting automation. Next, read the 10DLC registration walkthrough and the state-by-state texting law overview.

The done-for-you version

This post is System 1 from the Leveraged Owner Starter Pack — the done-for-you version with the full 11-step setup guide, consent-capture form language, every script, the worksheets, and complete setup guides for all 8 systems.

No industry statistics were used in this post. Compliance information is general and changes — verify against current TCPA/FCC rules and consult an attorney for your situation.