TCPA Consent Basics

The Telephone Consumer Protection Act (TCPA) enacted in 1991 regulates how credit unions (and other businesses and organizations) communicate with consumers by telephone and text messages. It helps protect consumers from unwanted telemarketing as a result of automated dialing systems, prerecorded messages, or text messages. The TCPA restricts calls and text messages made using an “automatic telephone dialing system” or an artificial or prerecorded voice (so-called “robocalls” or “robotexts”). Federal law sets requirements for when a business must obtain a consumer’s consent before making certain types of calls and sending text messages. The level of consent that is required to be obtained is determined by two things – the purpose of the communication, and the way the communication is delivered to the consumer.

You may recall that the FCC adopted a “one-to-one” consent requirement in the rule (and delayed the compliance date to provide additional time for compliance) that required consumers to give separate consent to each “individual seller” before receiving marketing calls or texts, the rule was ultimately vacated by the Eleventh Circuit before it took effect. 

You may also recall that the FCC adopted a rule that would require businesses to treat a consumer’s request to stop receiving robocalls or robotexts as revoking consent for all marketing robocalls and robotexts from that particular sender – unless the consumer clearly indicates that they want to opt out of only certain communications. The “revoke all consent” rule has been adopted by the FCC, but the effective date is currently delayed--with a current compliance date of January 31, 2027.

The information below provides a basic overview of the current TCPA consent requirements.

What is prior express consent?

Prior express consent means that a consumer gave permission to be contacted by phone or text before the call or text was made. Under the FCC’s interpretation of the TCPA, a consumer who voluntarily provides a telephone number to a creditor, such as in connection with a credit application or account relationship, generally gives prior express consent to receive communications at that number regarding matters related to the account relationship. For credit unions this could include when the consumer/member is opening an account, applying for a loan, or requesting information about the credit union’s products or services. Generally, that consent applies only to communications related to the reason the consumer/member provided the telephone number. (See FCC’s 2008 Declaratory Ruling).

Interestingly, FCC’s regulation does not provide a specific definition of the term “prior express content” even though the term is used in the first sentence of the regulation (47 CFR 64.1200(a)(1)) where it generally prohibits certain autodialed or prerecorded calls unless they are made with the prior express consent of the called party.

FCC rulings (see the 2008 ruling above), have interpreted that when a consumer knowingly provides their telephone number in connection with a transaction, they have generally given prior express consent to be contacted about that transaction. 

What types of communications sent by credit unions require prior express consent?

Generally, prior express consent is required for informational or servicing communications that are intended to help member consumers manage their accounts; they are not intended to promote or sell a product or service. These types of communications could include fraud alerts, payment reminders, account notifications, and/or other communications related to servicing an existing account.  Prior express consent is not required to make an informational phone call to a residential line when the credit union makes less than three informational phone calls per month, see 47 CFR 64.1200(a)(3).

What is prior express written consent?

Unlike prior express consent, prior express written consent requires a consumer’s written authorization in advance that is generally required before sending automated marketing calls, prerecorded voice messages or promotional text messages. Written consent means that the consumer has clearly agreed, in writing, to receive these communications. The written consent must clearly inform the consumer/member that they agree to receiving marketing/promotional communications and that providing consent is not a condition of obtaining a product or service. This written consent may be obtained through online forms, electronic signatures, electronic checkboxes or other legally acceptable methods.

Prior express written consent is defined in 47 CFR 64.1200(f)(9). It specifies that it must be a signed written agreement (including electronic signatures) authorizing telemarketing calls or texts using an auto dialer or prerecorded voice. It also requires disclosure that the consumer agrees to receive the calls or texts, and that consent is not a condition of purchasing goods and services.

What types of communications sent by credit unions require prior express written consent?

Prior express written consent is required for marketing or promotional communications such as general promotional text messages, automated marketing calls, prerecorded voice messages advertising the credit union’s products and services; calls or texts promoting refinancing opportunities or new loans, credit cards, or other financial services to current account holders, or other types of marketing campaigns.

Can consent be revoked by the consumer/member?

Yes. Consent can be revoked at any time if the consumer member no longer wants to receive certain calls or text messages. Under the current rule, consent can be revoked in any reasonable way. This means that it is not limited to a single method, such as replying “STOP” to a text message - it can also be revoked by speaking to a member service representative or other employee, sending an email, or using another clear method that indicates they no longer want to receive communications. Once the valid request is received the credit union must stop the communications covered by that request within a reasonable timeframe and update its systems to reflect the change. See 47 CFR 64.1200(a)(10).

It’s important to note that, effective January 31, 2027, the FCC’s “revoke all consent” rule will require a sender to stop future robocalls and robotexts that require consent when a consumer revokes consent, unless the consumer clearly expresses a more limited intent. 

Is there a timeframe for honoring the revocation request?

Revocation requests must be honored within a reasonable period but cannot exceed 10 business days from the receipt of the request. To meet the reasonable timeframe expectation, credit unions should have processes in place to ensure opt-out requests are handled quickly and consistently regardless of the way the consumer/member revokes its consent. See 47 CFR 64.1200(a)(10).