Who Can Give TCPA Consent: The Subscriber or the Phone’s User?

Under the FCC’s reading, consent can come from the person who pays for the phone line or from the person who regularly uses it, such as a relative on a family plan or an employee on a company plan. The statute doesn’t say so, and since 2025 a court in a private TCPA case doesn’t have to follow the FCC on the point. A business relying on a number handed over by someone other than the subscriber is relying on an interpretation.

Whose consent does the TCPA require?

The statute asks for consent of “the called party.” The autodialer and prerecorded-voice provision makes it unlawful to place such a call to a cell phone without “the prior express consent of the called party,” in 47 U.S.C. § 227(b)(1)(A). The statute doesn’t define the phrase.

The FCC filled the gap in its 2015 order. It found the term ambiguous, noted that the statute leaves out any modifier like “intended,” and concluded that the phrase means “the subscriber to whom the dialed wireless number is assigned” along with a customary user who is not the subscriber, since each is “the person whose privacy is interrupted by unwanted calls.” That passage is paragraph 74 of FCC 15-72.

The D.C. Circuit reviewed that order in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). It held that the Commission “could permissibly interpret” the phrase “to refer to the current subscriber.” The court set aside the FCC’s one-call safe harbor for reassigned numbers, but it left the current-subscriber reading alone.

Can someone other than the subscriber consent?

The FCC said yes, within limits. In paragraph 75 of the same order, it found it “reasonable to include in our interpretation of” the phrase “individuals who might not be the subscriber, but who, due to their relationship to the subscriber, are the number’s customary user and can provide prior express consent for the call.” It added that “it is reasonable for callers to rely on customary users, such as a close relative on a subscriber’s family calling plan or an employee on a company’s business calling plan.”

In practice, that covers a common situation. A customer fills out a form on a phone that belongs to a spouse’s plan, or an employee gives a company-issued number. If the FCC’s view holds, the caller can rely on that person’s consent as long as the person is the number’s customary user.

The D.C. Circuit described this part of the ruling in its opinion, noting that the ruling “accepts that a caller can rely on consent given by a wireless number’s” customary user instead of the subscriber. It did not set that reading aside. It also didn’t endorse it in terms. I’d treat it as an agency position that has survived review, not as a holding about what the statute means.

Do courts have to follow the FCC’s customary-user view?

Not anymore. In McLaughlin Chiropractic Associates v. McKesson Corp., decided in June 2025, the Supreme Court held that a district court in a private TCPA suit “should interpret the TCPA under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” That is respect, not obedience.

A plaintiff can now argue that only the subscriber, or someone with the subscriber’s authority, can consent. A defendant can answer with the FCC’s reasoning, the D.C. Circuit’s treatment of it, and the practical point the FCC made in paragraph 75 that a caller “cannot reasonably be expected to divine that the consenting person is not the subscriber.” I’d expect courts to give weight to that reasoning, but I wouldn’t promise any particular outcome, and I’d avoid a program that depends on it.

Where does this come up in a real business?

It comes up wherever a number travels. A lead form is filled out by a spouse on the family tablet. A sales rep keys in the number a customer recites from memory. A scheduling assistant gives the office the boss’s cell. A parent supplies a teenager’s number for school or tutoring reminders. In each case the person who supplied the number is real and cooperative, and the person who later receives the message is someone else.

The pattern I’d watch is repeat contact. One text to the wrong person is a mistake. Weeks of messages to a number that never replies are evidence that nobody checked, and a plaintiff will point out that the silence was a signal you ignored. The FCC’s own reasoning in paragraph 75 depends on the caller acting reasonably, so a call center that keeps dialing a number after a recipient says the number is wrong gives up the best part of the argument.

How can a business protect itself?

The simplest control is verification. Send a confirmation to the number and require the customer to enter it back, so you have evidence that the person who typed the number controls the phone. A verified number turns an argument about who consented into a record of who responded. It doesn’t prove the person is the subscriber, but it supports the customary-user argument.

Second, ask who the number belongs to when it matters. Calls to a number on a business plan, a shared family line, or a number supplied by a third party deserve a prompt that asks whether the person is the main user.

Third, keep the evidence of use: logs showing replies from that number, the same number appearing across multiple verified transactions, and account records tying the number to the customer.

What to preserve when a consent claim names a different person

1. Preserve the form, the verification event, and every reply from the number, with time stamps.
2. Pull any account records that tie the number to the customer or to the person who supplied it.
3. Collect the scripts or screens that asked for the number and any wording about who the number belongs to.
4. Run the reassigned numbers database check or retrieve earlier checks, since the safe harbor depends on it.
5. Hold off on responding to a demand letter or contacting the person who got the messages until a lawyer has reviewed the file.

The firm’s page on TCPA litigation defense describes how these claims move through court. For the scope question, see the earlier post on whether a phone number covers every call or text, and for proof at trial, proving TCPA consent at summary judgment.

Questions businesses ask about who can consent

Can an employee’s consent cover a company-issued phone?

The FCC’s 2015 order says a caller may rely on an employee who is the customary user of a number on a company calling plan. After McLaughlin, a court isn’t bound to agree, so I’d have the company’s own policy say who controls consent for company numbers.

What if the customer gave us someone else’s number?

The person who typed it in can’t consent for the person who owns it unless they are the customary user. Verify before you send, and stop at the first sign you’ve reached the wrong person.

Does consent from a prior subscriber carry over after a number is reassigned?

Not safely. The D.C. Circuit set aside the FCC’s one-call safe harbor, so there is no federal cushion for even one call beyond the database safe harbor in 47 C.F.R. § 64.1200(m), and that one requires you to prove each step.

Does a customer’s family member count as a customary user if they only borrow the phone?

That is the weak spot in the theory. The FCC’s examples describe a relative on a family plan or an employee on a company plan, someone who regularly uses the number, not someone who borrowed a phone once. I’d expect a court to ask how often the person actually used the line, which is why logs and account records matter.

Is this different for texts than calls?

The Supreme Court assumed in Facebook, Inc. v. Duguid that texts fall within the autodialer provision without deciding it, so I’d analyze them the same way.

Defending claims about consent from the wrong person

If your company has been sued or received a demand letter alleging it called or texted someone who never consented, the verification record and the evidence of who used the number will matter most. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving consent given on someone else’s phone line. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on February 15, 2026. The FCC order is Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC 15-72 (July 10, 2015).

The court decisions are ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), and McLaughlin Chiropractic Associates v. McKesson Corp., 606 U.S. 146 (2025).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 15, 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.