What is express consent for texts?
Express consent is a person's clear, affirmative permission, given before the message is sent, to receive automated calls or texts at a specific phone number. Federal TCPA rules recognize two levels: prior express consent, which covers informational messages like appointment reminders, and prior express written consent, a signed agreement required for automated marketing. Knowing which level a message needs is most of the battle.
- "Express" means stated clearly, not assumed. "Prior" means before the first automated message.
- Prior express consent covers informational texts. The FCC has said a patient who gives a provider their number has consented to healthcare messages within the scope of that consent.
- Prior express written consent, defined in 47 CFR 64.1200(f), is required for automated telemarketing and must be signed, including electronically.
- Consent belongs to the person who owns or customarily uses the phone, is limited in scope and can be revoked by any reasonable means.
The two levels, side by side
The TCPA itself uses the phrase "prior express consent" without defining it in detail. The FCC has filled in the meaning over the years, and it adopted a stricter, written form for marketing in 2012.
- Prior express consent. Required for autodialed or prerecorded non-marketing calls and texts to cell phones. It can be given orally, in writing or by conduct, such as providing your number for a related purpose. As far back as its 1992 order, the FCC said that people who knowingly release their phone number have, in effect, given permission to be called at that number absent instructions to the contrary.
- Prior express written consent. Required for autodialed or prerecorded telemarketing. Under 47 CFR 64.1200(f), it is a written agreement, bearing the signature of the person, that clearly authorizes the specific seller to deliver marketing messages using automated technology to a specified number. The agreement must disclose that the person is not required to sign it as a condition of buying anything. E-SIGN Act signatures, such as a checkbox on a web form with a record of acceptance, can qualify.
How this applies to a practice
In its 2015 omnibus TCPA ruling, the FCC addressed healthcare directly. It said a patient's provision of a phone number to a healthcare provider constitutes prior express consent for healthcare calls subject to HIPAA, made by the covered entity or its business associates, within the scope of the consent given and absent instructions to the contrary.
In practice, that sorts a practice's messages into two buckets:
- Care-related messages need prior express consent. Appointment reminders, confirmations, schedule changes, offers of an earlier opening, and invitations to book an overdue follow-up generally fall here.
- Promotional messages need prior express written consent if they are automated. A text promoting a discounted cosmetic package, a product sale or a new elective service is marketing, and the reminder consent does not cover it.
Four rules that limit any consent
- Who can consent. Consent must come from the subscriber or the customary user of the phone, such as a family member on the same plan. A number a patient wrote down for a relative may not carry that relative's consent.
- Scope. Consent covers messages related to the reason the number was given. A number given for appointment scheduling does not authorize unrelated promotions.
- Revocation. Under FCC rules effective April 11, 2025, a person can revoke consent by any reasonable means, and a reply of STOP, QUIT, END, REVOKE, OPT OUT, CANCEL or UNSUBSCRIBE counts.
- Reassigned numbers. Phone numbers change hands. Consent from the old owner does not transfer to the new one. Re-confirming the mobile number at check-in catches most of these.
Documenting consent so it holds up
Consent is only useful if you can show it later. Courts decide TCPA cases, and since the Supreme Court's 2025 decision in McLaughlin Chiropractic Associates v. McKesson, district courts are not bound by the FCC's interpretations. A clear record is the best protection.
For each patient, a good record answers five questions: which number, collected when, through which form or conversation, for what kind of message, and whether anything has changed since. Our guide to consent for appointment reminder texts includes sample intake wording and a front-desk script. A simple checklist for the record itself:
- Date the mobile number was collected and who collected it.
- The form version or the words used, if collected by phone.
- A separate yes or no for promotional texts, if you ever send them.
- Every opt-out and opt-in, with date and channel.
- The last date the number was re-confirmed.
Common mistakes
- Bundling. Hiding marketing consent inside reminder consent, or making it a condition of care. Keep it separate and optional.
- Assuming old consent is forever. A number collected eight years ago may now belong to someone else.
- Ignoring non-keyword opt-outs. "Please stop texting me" is a revocation even though it isn't a keyword.
- Relying on a vendor's word. A vendor can send messages for you, but the consent record is yours. Make sure you can export it.
- Chasing the one-to-one rule. In January 2025 the Eleventh Circuit vacated the FCC's rule that would have required marketing consent one seller at a time. That rule mattered mostly to lead generators, and it does not change how a practice handles its own patients.
Care-related messages only, consent respected
DocsMD sends practices' patients care-related messages: openings, confirmations and invitations to rebook, carrying the practice name, times and numbered choices and nothing more. STOP is honored on every message. Because DocsMD recovers visits rather than marketing to patients, its messages stay in the care-related lane where the reminder consent applies.
Questions
Is giving my phone number on an intake form express consent?
For care-related texts from that practice, the FCC has said yes, within the scope of the consent and absent instructions to the contrary. Clear intake wording removes doubt.
Does a checkbox count as written consent?
It can. Under the E-SIGN Act, an electronic signature such as a checked box with a recorded acceptance can satisfy the signature requirement, if the wording meets the FCC's disclosure rules.
Can a patient withdraw consent by phone instead of text?
Yes. Consent can be revoked by any reasonable means, including a phone call, an email or telling the front desk in person.
Do we need new consent for texts offering an earlier appointment?
Offers of an earlier time for care the patient already needs are generally care-related. Promotions for new services are not. When in doubt, ask counsel.