Do Not Call Claims and Prior Express Invitation or Permission
A number on the National Do Not Call Registry isn’t off limits to every business. The TCPA’s definition of a telephone solicitation excludes calls the person invited or permitted, and the FCC’s Do Not Call rule has a safe harbor for a business holding a signed, written agreement to be contacted. The two provisions use different words, and many Do Not Call disputes turn on the gap. A business that can produce the agreement is in a strong position.
Why does permission matter in a Do Not Call case?
Because the Do Not Call rule only covers telephone solicitations. The FCC’s rule at 47 C.F.R. § 64.1200(c)(2) bars initiating “any telephone solicitation” to a residential subscriber whose number is on the Registry. If a call isn’t a telephone solicitation, the Registry rule doesn’t apply to it.
The definition carries the exclusion. Under the same section, at paragraph (f)(15), a telephone solicitation is a call or message meant to encourage “the purchase or rental of, or investment in, property, goods, or services,” but the term doesn’t include a call or message “To any person with that person’s prior express invitation or permission.” The statute’s own definition in 47 U.S.C. § 227(a)(4) contains the same exclusion. A call to an existing customer may also fall under the separate established business relationship exclusion, which has its own rules and time limits.
What does the FCC’s safe harbor require?
A signed, written agreement. Paragraph (c)(2) lists the ways a business “will not be liable for violating this requirement,” and one of them, at (c)(2)(ii), applies if the business “has obtained the subscriber’s prior express invitation or permission.” The rule then adds that “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.”
That sentence sets three specific requirements a court will look for. The agreement must name the seller, not just “partners” or “affiliates.” It must say the consumer agrees to be contacted. And it must include the phone number. A web form that collects a number and a checkbox can satisfy those terms if it’s built for them, and the post on electronic signatures and web form consent covers how electronic signing works.
| Source of the defense | Text | What the business must show | Practical risk |
|---|---|---|---|
| Statute, § 227(a)(4) | Excludes calls made with prior express invitation or permission | The person invited or permitted the call | The statute doesn’t say what form permission takes |
| FCC rule, § 64.1200(f)(15)(i) | Same exclusion in the rule’s definition | Same | Courts may read it alongside the safe harbor |
| FCC safe harbor, § 64.1200(c)(2)(ii) | Signed, written agreement naming the seller and the number | The agreement itself | Missing seller name or number weakens it |
| Established business relationship | Separate exclusion with its own limits | A qualifying transaction or inquiry | Covered by different rules |
Does permission have to be in writing?
The safe harbor says it does. The definitional exclusion, read on its own, doesn’t state a form. A business without a signed agreement may argue that a consumer’s request for a call, such as asking for a quote on the phone, was an invitation that takes the call outside the definition. That argument is weaker than producing the agreement, and a court may read the definition and the safe harbor together. The safer course is to treat the written agreement as the requirement and the definition as a fallback.
The burden sits with the business. In Do Not Call litigation, consent and permission are defenses the company has to prove, which is why the post on affirmative defenses in a TCPA answer recommends pleading them. Records kept in the ordinary course, such as the form, the timestamp, the IP address, and the disclosure text the consumer saw, are what make the defense work.
What if someone other than the subscriber gave permission?
That question is open in the Ninth Circuit. In Hall v. Smosh Dot Com, Inc. (9th Cir. 2023) 72 F.4th 983, the defendants argued that the subscriber’s son “solicited the text messages by signing up through an online form.” The court held the subscriber had standing to sue and said the consent issues “are reserved for the district court on remand.”
The opinion noted a possible path for businesses. It said that under § 64.1200(c)(2)(ii), it may be enough for a telemarketer to show “it obtained the consent of a phone’s” consumer, “even if the phone’s consumer is someone other than the phone’s subscriber.” The court didn’t decide the point. The post on who can give TCPA consent covers the subscriber and user question in more detail.
How should a business use the safe harbor?
Build the agreement into the sign-up flow and keep proof of it. The language should name the seller as it appears in calls and texts, say in simple terms that the consumer agrees to be contacted for marketing, and capture the number. Lead forms that name a long list of companies, or that refer only to marketing partners, invite an argument that no agreement with this seller exists.
Permission also has limits in time and scope. A consumer who later asks to stop getting calls has withdrawn permission, and the business’s internal do-not-call list has to include that request. A Registry scrub, covered in the post on the 31-day scrub rule, remains the primary control for numbers without an agreement.
These records usually decide the outcome, and TCPA defense lawyers typically ask for them first when a Do Not Call claim arrives.
Records to gather when a Do Not Call claim cites the Registry
- Preserve the call and text logs, dialer and platform data, and every consent or sign-up record for the number, with timestamps, under a litigation hold.
- Pull the opt-out and internal do-not-call logs with dates, which show whether permission was later withdrawn.
- Pull the National Do Not Call Registry scrub records and the Registry version dates used for each campaign.
- Collect lead-source and vendor contracts and scripts, along with the web form versions and disclosure text the consumer saw, and any prerecorded or AI-voice files.
- Talk to a lawyer before replying to a demand letter, contacting the consumer, or offering a settlement.
Questions about permission and the Do Not Call Registry
Can a business text a Registry number if the consumer filled out its web form?
Often yes, if the form created a written agreement that names the business, states the consumer agrees to be contacted, and includes the number. That’s what § 64.1200(c)(2)(ii) requires for the safe harbor. Forms that don’t name the seller, or that bury the agreement in terms the consumer never saw, are where these defenses usually run into trouble.
Does a lead generator’s consent cover the business that buys the lead?
Only if the agreement names that business. The rule requires an agreement “between the consumer and seller” stating the consumer agrees to be contacted “by this seller.” A form that lists many possible sellers, or none, gives the buyer a weaker position. Buyers should review the actual form and disclosure language before calling Registry numbers.
Is a verbal request for a callback enough?
It may support the argument that the call fell outside the definition of a telephone solicitation, because the person invited it. But it doesn’t meet the safe harbor’s written agreement requirement. A business that relies on verbal requests should document them in the moment, such as in a call recording or CRM note, and expect the plaintiff to dispute them.
Does registering on the Do Not Call list cancel an earlier agreement?
The rule doesn’t say registration cancels an agreement. A consumer who wants calls to stop can ask the business directly, and that request must be honored. Because the timing of an agreement, a Registry listing, and any stop request can all matter, the dates in the business’s records often decide the claim.
When the plaintiff’s number is on the Registry
If your company has been sued for calling or texting a number on the Do Not Call Registry, the sign-up records and the wording of the consumer’s agreement usually decide whether the safe harbor applies. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving marketing texts to Registry numbers. Contact Rosenberger + Kawabata online for a 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.
The court decision is Hall v. Smosh Dot Com, Inc. (9th Cir. 2023) 72 F.4th 983.
This post is general information about the Telephone Consumer Protection Act and related laws as of April 9, 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.