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WHAT IS THE DEFINITION OF A PRIOR EXPRESS CONSENT OR PRIOR EXPRESS WRITTEN CONSENT?

Prior Express Consent: This term is not specifically defined in the statute or the FCC regulations. The FCC and most courts have construed the term to mean any provision (written or oral) of consent to receive calls at a particular phone number. Thus, when a consumer knowingly provides a phone number to a business, they give that business permission to send commercial calls or messages to the phone number provided. But a minority position adopted by some courts holds that the consent only extends to the receipt of autodialed calls to the extent the consumer expressly authorizes such calls. Additionally, under the FCC�s new rules that became effective in October 16, 2013, "prior express written consent" is required for all robocalls that contain marketing, and that term is defined more narrowly.

Prior Express Written Consent: Unlike "prior express consent," this term is specifically defined in the FCC regulations. It means a written agreement between the caller and the receiver of a call or message that clearly authorizes the caller to deliver to the receiver "advertisements or telemarketing messages using an automatic telephone dialing system or an artificial prerecorded voice," that specifies the phone number to be called and bears the "signature" of the person receiving the call. 47 C.F.R. 64.1200(f)(8). Thus, it requires express consent to receiving robocalls and it requires that consent in writing.

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