Is Text Consent a Condition of Purchase? Checkboxes and the TCPA
Text consent can’t be a price of buying. The FCC’s rule for written consent to marketing robocalls and robotexts says the customer must be told they don’t have to agree “as a condition of purchasing any property, goods, or services.” A checkout flow that won’t complete without the box, or a form with the box already checked, invites a challenge to the record. If a company can’t show a clean signature and a clean disclosure, it carries the burden of proving the consent was real.
What does the rule say about conditioning consent?
It says the customer must be told, in plain terms, that signing is optional. Under the FCC’s definition in 47 C.F.R. § 64.1200(f)(9), prior express written consent is “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.”
The same paragraph requires a “clear and conspicuous disclosure” that “The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.” Two words matter there: “directly or indirectly.” A form that never says the box is required but won’t let the order go through without it is conditioning in practice.
The FCC explained the origin of these requirements when it adopted them. In its 2012 TCPA order, it concluded that the agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.” It added 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.”
That burden is the part I’d underline for any business. The consent record is your evidence, and the rule puts the proof on you.
When does the written-consent rule actually apply?
Less often than people assume. The requirement attaches to marketing calls and texts sent with an autodialer or a prerecorded or artificial voice, under § 64.1200(a)(2). After the Supreme Court’s decision in Facebook, Inc. v. Duguid, an autodialer is a device that “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” A platform that texts a stored list usually isn’t one.
So why collect written consent at all? Because the Do Not Call rules have their own permission standard, and it’s also written. A caller facing a claim about a number on the National Do Not Call Registry can rely on “the subscriber’s prior express invitation or permission,” but the rule says “Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed,” per § 64.1200(c)(2)(ii). That standard applies whatever technology sent the message.
For most marketing programs, then, the checkbox is the document you’d hand a court. It’s worth building it as if every claim would turn on it.
Is a pre-checked box a signature?
It’s the weakest version of a signature, and I wouldn’t build a program on it. Electronic signatures are valid. The rule says the term signature “shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law,” and the E-SIGN Act provides that “a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form,” at 15 U.S.C. § 7001(a). The FCC said in its 2012 order that consent obtained through a “website form, text message, telephone keypress, or voice recording” can qualify.
None of that makes the format irrelevant. The FCC’s test, in that same order, is whether the consumer “agrees unambiguously” after receiving a clear disclosure. A box the company checked in advance records what the company did, not what the customer chose. A customer who never touched it has a simple argument that nobody agreed to anything, and the seller has the burden of answering it. I’d use an empty box that the customer ticks as a separate action from the order, and I’d keep a time-stamped record of that click along with a copy of the page as it looked that day.
Do discounts for opting in count as a condition?
The rule doesn’t say. Its text addresses what the customer is required to do “as a condition of purchasing,” and nothing in it mentions a discount offered for signing up. My reading is that the question is whether a customer can complete the purchase at the same terms without agreeing, but I’d treat a discount that disappears at checkout unless the box is ticked as a close call. If the offer is a separate coupon sign-up on a different screen from the order, you’re in better shape.
| Consent flow | Risk | What to keep |
|---|---|---|
| Empty box on its own line, order completes either way | Lower | Time-stamped click record, with the exact disclosure text and page version |
| Box required to place the order | Higher: conditions the purchase | Don’t use it for marketing consent |
| Box pre-checked | Higher: proof of an affirmative act is thin | Treat as no consent unless the customer acted separately |
| Phone number collected for a receipt, then used for promotions | Higher: scope problem | The prompt wording and where the number was entered |
| Keyword text-in from an ad | Depends on the disclosure in the ad | The ad, the keyword, and the reply thread |
What to gather when a consent claim arrives
- Preserve the consent artifact: the form or page as it appeared on the day of sign-up, with version history, not today’s page.
- Pull the system record of the click or entry: the time stamp and IP address of the click, and the phone number submitted.
- Collect the disclosure text and any terms page the box linked to, as displayed at that time.
- Get the first message the customer received and the reply thread, so you can show what they were told and how they responded.
- Wait to answer the demand letter or contact the claimant until a lawyer has reviewed the record.
The firm’s TCPA defense attorneys in California page covers how these claims move through state and federal court. For scope questions, see the earlier post on whether a phone number covers every call or text, and for the keyword route, text-to-join and double opt-in records.
Questions businesses ask about consent checkboxes
Do we need written consent for every marketing text?
Not under the autodialer provision unless the text goes out by an autodialer or an artificial or prerecorded voice, which most texting platforms aren’t after Duguid. The Do Not Call rules are different, because permission to text a Registry number should be evidenced by a signed, written agreement. Most companies collect the signed record either way, since it answers both theories.
Can we require the box for a loyalty program?
If the program is the thing being sold, requiring the text agreement is closer to the line than requiring it for an unrelated purchase. The rule asks whether consent is required “as a condition of purchasing any property, goods, or services.” I’d write the loyalty terms so the customer can join the program without agreeing to marketing texts, and keep the choices separate.
Does a click on “I agree” to the terms of service cover text marketing?
Probably not, if the text agreement is buried. The FCC wants a “clear and conspicuous disclosure,” defined in § 64.1200(f)(3) as “a notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.” A general terms click is a hard fit for that definition.
Who has to prove consent in a lawsuit?
In practice, the seller. The FCC’s 2012 order puts the burden on the seller to show a clear disclosure and unambiguous consent. Recordkeeping for the sign-up flow is therefore a litigation issue, not just a marketing one. I’d have counsel review the form language before a campaign launches, because rewriting a disclosure after a demand letter arrives doesn’t change what customers saw.
Defending consent-based text claims
If your company has been sued or received a demand letter alleging it texted people without valid consent, the form, the click record, and the version history of the page usually decide the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving checkbox and checkout consent. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The statutes are the Telephone Consumer Protection Act at 47 U.S.C. § 227 and the E-SIGN Act at 15 U.S.C. § 7001. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on January 7, 2026. The FCC order is In re Rules and Regulations Implementing the Telephone Consumer Protection Act, FCC 12-21 (Feb. 15, 2012).
The court decision is Facebook, Inc. v. Duguid, 592 U.S. 395 (2021).
This post is general information about the Telephone Consumer Protection Act and related laws as of January 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.