TCPA · Consent records
What a TCPA consent record has to contain
Two federal rules say what consent must be and what a record of it must hold. Here is each one in plain English, and how a recorded form submission covers it. This is a summary, not legal advice.
The consent itself: the FCC's definition
The FCC defines prior express written consent as a written agreement, signed by the person called, that clearly authorizes the seller to reach them with autodialed or prerecorded marketing. Three things have to be true of it:
- It clearly tells the consumer that agreeing authorizes those calls or texts.
- It tells them agreeing is not required to buy anything.
- It is signed. An electronic signature counts where federal or state law recognizes it.
The record: five things the FTC asks you to keep
The FTC's Telemarketing Sales Rule lists what a record of consent must include (16 CFR 310.5(a)(8)). Set next to what a recorded submission captures:
| The rule asks for | What a Kapture recording keeps |
|---|---|
| The name and phone number of the person who consented | The fields they typed, captured at submit, with device, IP address, page and time zone |
| A copy of the request for consent, in the same manner and format it was presented | A replay of the page exactly as the consumer saw it, disclosure text included |
| The purpose for which consent was requested and given | The disclosure wording on that page, inside the replay |
| A copy of the consent provided | The checkbox tick and the submit, second by second on the timeline |
| The date consent was given | A timestamped, tamper-proof record |
The second row is the one templates fail. A screenshot of today's form, or the version in your CMS, is not "the same manner and format" the consumer saw on the day. A recording of their actual session is.
Consent record checklist
For each lead, can you produce all of these, years from now, without asking a vendor?
- The consumer's name and phone number, as they entered them
- The page exactly as they saw it, disclosure text included, not today's version of the form
- Disclosure wording that says agreeing authorizes marketing calls or texts by autodialer or prerecorded voice
- Wording that says agreeing is not a condition of purchase
- Their signature: the checkbox tick and the submit, with the time of each
- The date and time consent was given
- The seller or sellers the consent names
- An ID that ties the record to the lead in every system that received it
- Proof the record has not been edited since
- A copy you control, kept at least five years past the last call that relied on it (work out the date)
A summary for planning, not legal advice. Have counsel review your disclosure wording.
What makes a record hold up
- It is of the real session. Not a reconstruction, not a sample page.
- It cannot be quietly edited. Kapture records are tamper-proof.
- It is tied to the lead. Each record carries an ID in a hidden form field, so it travels with the lead to every buyer, and a dialer can check it through the API before it calls.
- You can produce it. It sits in storage you own, for as long as you keep it. See how long to keep consent records.
A record proves what happened. It does not fix a disclosure that was wrong to begin with, and no tool can promise a TCPA outcome. Have counsel review the wording on the page.
Questions
- What must a TCPA consent record include?
- The FTC's Telemarketing Sales Rule (16 CFR 310.5(a)(8)) lists five things: the name and phone number of the person who consented, a copy of the request for consent in the same manner and format it was presented, the purpose, a copy of the consent provided, and the date it was given.
- Is a screenshot of my form enough proof of consent?
- Usually not on its own. The rule asks for the request in the same manner and format the consumer saw it. A screenshot of today's form, or the version in your CMS, may not match what a given consumer saw on the day. A recording of their actual session does.
- What is prior express written consent?
- The FCC's definition (47 CFR 64.1200(f)(9)): a written agreement, signed by the person called, that clearly authorizes the seller to reach them with autodialed or prerecorded marketing, tells them so clearly, and tells them agreeing is not a condition of purchase. Electronic signatures count where federal or state law recognizes them.
- Is a lead certificate a complete consent record?
- Usually not on its own. A certificate from a consent-certificate vendor is strong evidence that a consent event happened, but the FTC rule lists five things the record must hold, including a copy of the request in the same manner and format the consumer saw and the purpose of the consent. Keep the certificate as one part of the file, alongside the rest.