TCPA Scope of Consent: Does a Phone Number Cover Every Call or Text?

No. A customer who knowingly gives your business a phone number generally consents to autodialed or prerecorded calls about the reason they gave it, absent instructions to the contrary, not to everything. Marketing robocalls need written consent. The Ninth Circuit put it this way in Van Patten: “the scope of a consumer’s consent depends on the transactional context in which it is given.” In my view, a business that can show where and why it got a number often has a stronger defense than the demand letter admits.

Where does the idea that a phone number equals consent come from?

The Telephone Consumer Protection Act bars calls to cell phones using an autodialer or an artificial or prerecorded voice, apart from emergency calls, unless the call is “made with the prior express consent of the called party,” under 47 U.S.C. § 227(b)(1)(A), and it never defines that phrase.

The FCC filled the gap in 1992, concluding that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary,” as the FCC repeated in its 2015 TCPA order.

In 2008, the FCC’s ruling for ACA International held that giving a cell number to a creditor, for example on a credit application, “reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” The same ruling limited that consent to numbers the consumer gave the creditor during the transaction that created the debt.

What did Van Patten v. Vertical Fitness Group decide?

When Bradley Van Patten joined a Gold’s Gym in 2009, his cell number went on a courtesy card and his membership agreement. He canceled within three days. In 2012, after a rebrand to Xperience Fitness, the gym’s operator and a marketing vendor texted him an invitation to come back for $9.99 a month, and he sued.

The court held that “an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages,” according to the opinion. It rejected the gym’s broadest argument: “the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason.” And it held that giving his number for the gym membership “did not amount to consent to be contacted for all purposes.”

The gym still won. The court concluded that the come-back texts related to the reason Van Patten gave his number in the first place, a gym membership, so they fell within his consent. Canceling the membership, without telling the gym to stop contacting him, didn’t revoke it. The court also brushed aside the rebrand, writing that “That the brand affiliation changed does not affect that the gym was owned and operated by the same entities.”

The court also held that “Express consent is not an element of a plaintiff’s prima facie case but is an affirmative defense,” so the business carries the burden of proving it. Asked in 2022 to disregard the FCC reading Van Patten adopted, the Ninth Circuit in Moskowitz v. American Savings Bank answered: “But Van Patten is a published opinion and binding precedent.” A published opinion yields only when it is “clearly irreconcilable with an intervening higher authority,” which is why the McLaughlin case discussed below matters.

The FCC has also adopted rules, effective April 11, 2025, “to make it simpler for consumers to revoke consent to unwanted robocalls and robotexts,” according to its Federal Register notice. Once those rules take effect, under the FCC’s 2024 order, a stop request sent in reply to an informational message “acts as a revocation of consent for all calls from the caller,” and requests must be honored “within a reasonable time not to exceed 10 business days of receipt.”

Does a call have to match the exact reason the number was given?

No, but it has to relate to it. In Fober v. Management and Technology Consultants, the Ninth Circuit applied Van Patten and said “a call must relate to the reason why the called party provided his or her phone number in the first place.” A health plan member had given her number on an enrollment form that let her information be disclosed for “health plan operations” including “quality improvement,” and the court held that a contractor’s survey calls about her experience with her assigned doctor fell within that consent.

The phrase “closely related to the purpose” comes from a narrower source. In its 2015 order, the FCC clarified consent for healthcare calls and explained in a footnote that “the call must be closely related to the purpose for which the telephone number was originally provided.” The FCC said “Our clarification extends only to calls that are subject to HIPAA.”

In a footnote in Latner v. Mount Sinai, the Second Circuit described that language as narrowing consent and held that, to the extent the trial court relied on the 2015 healthcare exemption, it didn’t apply to an earlier text. Applying the FCC’s 2014 statement, repeated in the 2015 order, that “the scope of consent must be determined upon the facts of each situation,” and relying on his signed intake and privacy-notice forms, the court held “that Latner provided his prior express consent to receiving a single text message” about a flu shot.

My view is that Van Patten’s test is friendlier to businesses than it looks. The court’s own example of what the gym member agreed to was “follow-up questions about his gym membership application,” and many routine account and follow-up calls fit that mold.

Does consent carry over to an affiliate, a vendor, or a new brand?

Collectors calling for you. The FCC’s 2015 order summarized its 2008 ruling this way: the consent covers the original creditor’s calls and is also valid “for those made by a third party collector acting on behalf of that creditor.” The same rule cuts the other way on liability. The 2008 ruling states that “Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call,” so the creditor answers for its collector’s calls, and the FCC added that “A third party collector may also be liable.”

Affiliates and other companies. Consent doesn’t travel to a different company just because the numbers did. In the 2008 ruling, the FCC said consent given to one creditor doesn’t let it call for other creditors, “including on behalf of affiliated entities.” The Ninth Circuit’s decision in Satterfield v. Simon & Schuster shows how literally that court read the word “affiliates.” A consumer agreed to promotions from a mobile-content company’s “affiliates and brands,” and a publisher later texted her. The court noted that “The record confirms that Nextones neither owns nor controls Simon & Schuster” and held that the consent didn’t cover the publisher’s message.

Intermediaries and purchased lists. The FCC has said “an intermediary may only convey consent that has actually been provided by the consumer,” as it repeated in the 2015 order. I’d apply that with special force to purchased lists, which for marketing also need written consent.

Marketing consent and the one-seller rule. For autodialed or prerecorded marketing, the FCC has amended its written-consent definition, with compliance required as of January 27, 2025, so that a consent “authorizes no more than one identified seller” and the calls “must be logically and topically associated with the interaction that prompted the consent,” according to its Federal Register notice. Insurance Marketing Coalition argued in its Eleventh Circuit reply brief that “Part III.D of the Order should be set aside because it stretches the statutory text past the breaking point,” and the court heard argument on December 18, 2024. Until the court rules, I’d plan marketing consent one seller at a time.

What about a different product or a later transaction?

A call about something unrelated to the purpose the number came in for is the clearest out-of-scope risk.

Telemarketing follows a different rule. Since October 16, 2013, a number given in the ordinary course hasn’t been enough for marketing robocalls or autodialed marketing texts to cell phones, as Van Patten explains. The FCC’s rule bars “any telephone call that includes or introduces an advertisement or constitutes telemarketing” using an autodialer or prerecorded voice without “the prior express written consent of the called party,” under 47 C.F.R. § 64.1200(a)(2), with limited exceptions. Sending Van Patten’s come-back texts by autodialer today would need prior express written consent, a signed agreement with the disclosures the rule requires, which, in my view, many ordinary membership forms lack.

Prerecorded and artificial-voice calls are covered whatever equipment places them. For a claim that rests on an autodialer, the plaintiff must show one was used, and the Supreme Court held in Facebook, Inc. v. Duguid that an autodialer must have the capacity to use a random or sequential number generator to store or produce the numbers it calls. The Do Not Call rules are different. A telephone solicitation to a residential subscriber whose number is on the national registry can violate § 64.1200(c)(2) whatever sends it, and the rule’s consent exception requires permission “evidenced by a signed, written agreement between the consumer and seller.” The definition of telephone solicitation also excludes a call to anyone “with whom the caller has an established business relationship,” which the rule ties to a purchase or transaction within 18 months or an inquiry within three months, ends with a do-not-call request, and doesn’t extend to affiliates the customer wouldn’t reasonably expect. A private suit needs “more than one telephone call within any 12-month period by or on behalf of the same entity” under § 227(c)(5), which also gives an affirmative defense to a business that “has established and implemented, with due care, reasonable practices and procedures” to prevent these calls.

A later transaction. In Van Patten, texts sent about three years after signup were held within scope. A new transaction may be different. The 2008 ruling tied a creditor’s consent to the transaction that produced the debt. Read literally, a number given when a customer opened one account doesn’t automatically supply consent for calls about a separate debt taken on later. When I review a later-transaction claim, I ask first for the record showing which transaction put the number on file.

How the Ninth Circuit and the FCC have treated common scope situations

Under 47 U.S.C. § 227(b)(3), an autodialed, artificial-voice, or prerecorded call made without consent carries $500 per violation, or the actual monetary loss if greater, and a court may in its discretion increase the award to up to three times that amount (up to $1,500 where statutory damages apply) if it finds the violation willful or knowing. Do Not Call claims under § 227(c)(5) allow up to $500 per violation, with the same discretionary increase.

How should a business document the context in which a number was given?

Document it at the moment of capture, because it’s the hardest evidence to rebuild later.

The FCC pointed creditors to “records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications,” in the 2008 ruling. I’d add two habits.

Keep the form, not just the field. Archive each version of every web page, app screen, paper form, or call script that collects numbers, with the dates it was live, and tie each number to the form version and transaction it came in with, along with its purpose.

Get the source record from vendors. For numbers from a lead seller or other intermediary, contract for the original capture record and the right to produce it in litigation. To me, a vendor’s promise that consent exists is a contract claim, not proof.

What to pull together when a scope-of-consent claim arrives

1. Put a litigation hold on platform logs and every consent and capture record for the numbers in the claim.
2. Pull the opt-out history and the internal do-not-call list entries for those numbers, with dates.
3. Pull the National Do Not Call Registry scrub records for the campaigns, with the registry version dates used.
4. Gather vendor and lead-source contracts, archived capture forms and scripts, and the message templates used.
5. Talk to a lawyer before you answer the demand letter or offer the claimant anything to make it go away.

The firm’s California TCPA defense lawyers page explains how it approaches claims involving calls to numbers customers provided and messages sent by affiliates or vendors.

Questions businesses ask about the scope of TCPA consent

Can our affiliate rely on consent the customer gave us?

For non-marketing calls, generally only if the consent covers that company, by name, by a word like “affiliates” read in its ordinary sense, or by authorizing disclosure to others for the reason behind the call, as in Fober. In a debt-collection ruling, the FCC said a creditor’s consent doesn’t let it call on behalf of affiliated entities. For autodialed or prerecorded marketing, each written consent can name only one seller from January 27, 2025.

Who has to prove consent in a TCPA case?

In a damages case, the business does. Van Patten held that express consent is an affirmative defense, and Latner agreed, so the caller bears the burden. Van Patten noted one exception: a plaintiff seeking a preliminary injunction must show the absence of consent. A plaintiff doesn’t need to prove they never agreed. The company needs to prove they did, and that the call fell inside that agreement.

Will the Supreme Court’s pending McLaughlin case change these rules?

It could. The Supreme Court granted review in McLaughlin Chiropractic Associates v. McKesson Corp. on October 4, 2024, on whether the Hobbs Act required a district court to accept the FCC’s legal interpretation of the TCPA, and argument is set for January 21, 2025. It follows Loper Bright Enterprises v. Raimondo, which held “Chevron is overruled.” The rule that giving a number is consent comes from the FCC, and Van Patten didn’t question it. If district courts are freed from FCC interpretations, expect plaintiffs to argue that handing over a number isn’t “express” consent at all.

If your company is accused of calling outside the consent a customer gave

If your company has been sued or received a demand letter claiming its calls or texts went beyond what a customer agreed to, the records showing where and why each number was collected are often what the defense is built on. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls to numbers customers provided and messages sent by affiliates or vendors. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on January 1, 2025.

The FCC orders are the 1992 Report and Order, 7 FCC Rcd 8752 (quoted as later orders quote it), the 2008 ACA International ruling, 23 FCC Rcd 559, the 2014 GroupMe ruling, 29 FCC Rcd 3442 (quoted as the 2015 order quotes it), the 2015 order, 30 FCC Rcd 7961, and the 2024 revocation order, FCC 24-24. Federal Register notices: 89 FR 5098, 89 FR 82518, and 89 FR 87982.

The cases are Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Fober v. Management & Technology Consultants, LLC, 886 F.3d 789 (9th Cir. 2018); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009); Moskowitz v. American Savings Bank, 37 F.4th 538 (9th Cir. 2022); Latner v. Mount Sinai Health System, Inc., 879 F.3d 52 (2d Cir. 2018); Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); and Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). The McLaughlin docket is No. 23-1226 (as archived Dec. 24, 2024), and the Eleventh Circuit case is Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277, argued Dec. 18, 2024 (reply brief).

This post is general information about the Telephone Consumer Protection Act and related laws as of January 1, 2025. 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.