Your Consent Language Is Probably Missing These 14 Elements
If you are an insurance agent or agency owner who contacts leads by phone or text, the quality of your consent language is not a compliance checkbox. It is the foundation of your entire lead generation program. One poorly drafted disclosure can expose you to per-call statutory damages of up to $1,500 under the TCPA, and class action lawyers know exactly how to find it.
This article walks through what prior express written consent actually requires, shows you the difference between language that holds up and language that invites litigation, and closes with a practical checklist and template language you can take to your attorney for review.
What Prior Express Written Consent Actually Requires
The TCPA requires "prior express written consent" before an insurance agent can call or text a consumer using an automatic telephone dialing system (ATDS), a prerecorded voice, or an AI-generated voice. The FCC has explicitly confirmed that AI-generated voice calls fall within the "prerecorded or artificial voice" category, which means the same written consent standard applies whether you are using a human caller, a pre-recorded message, or a conversational AI platform.
"Prior" means the consent must exist before the call or text is made. "Express" means the consumer must take an affirmative action, not just passively browse your website. "Written" in the digital context means a compliant electronic signature captured through a documented consent mechanism. All three elements must be present, and courts have been increasingly willing to scrutinize each one independently.
The FCC's 2024 one-to-one consent rules tightened things further for lead generators and insurance agents specifically. If you are buying leads or using a lead generation partner, you need to understand exactly how that consent was captured.
What "Automated Technology" Covers
Insurance agents often underestimate the breadth of what triggers TCPA prior express written consent requirements. Your consent language needs to specifically disclose the use of an automatic telephone dialing system (ATDS), prerecorded voice messages, and AI-generated or artificial voice calls. The more specific your disclosure, the stronger your consent defense. Vague language like "we may contact you by phone" will not get you where you need to go. Courts look at whether the consent language actually put the consumer on notice of the specific technology being used to reach them.
Three Versions of Consent Language — One That Actually Holds Up
The gap between compliant and non-compliant consent language often comes down to a handful of specific disclosures. Here is how that plays out in practice.
The Version That Fails (and Why)
Consider this common example: "By submitting this form, you agree to our Terms of Service and Privacy Policy and consent to be contacted."
This type of language fails on nearly every dimension. There is no acceptance method beyond form submission, which courts have found insufficient because the consumer is not taking a clear affirmative action specifically directed at consent. There is no mention of SMS or text messages, no disclosure of automated dialing technology or ATDS, no reference to AI-generated voice calls, no identification of the seller, no disclosure that consent is not required to purchase, and no reference to an electronic signature. The disclosure is likely buried below the submit button rather than above it, and there is no alternative path for consumers who do not want to give consent.
Each of these failures is an independent litigation hook. Plaintiff's attorneys file TCPA cases based on single missing elements, and juries do not have to find all the problems at once. Just one is enough.
The Version That Is Closer But Still Risky
Compare that to: "By clicking 'Get My Quote,' you consent to receive calls and texts from ABC Insurance using automated technology. Consent is not required to purchase."
This is better. It names the seller, discloses automated technology, covers calls and texts, and includes the statutory consent-not-required disclosure. But it still falls short. It does not specifically disclose AI-generated or artificial voice calls, does not reference an electronic signature, does not address placement relative to the CTA button, and does not provide an alternative path to obtain the service without consent. At this level of specificity, you might win some cases and lose others. That is not a defensible position when the statutory damages exposure is $500 to $1,500 per call.
The Version That Actually Works
The template section below provides compliant language, but the structural elements that make good consent language work are these: a clearly identified acceptance method such as a checkbox rather than just form submission, placement above the CTA so the consumer sees it before clicking, specific disclosure of ATDS, prerecorded voice, and AI-generated voice, identification of the seller by name, coverage of both calls and texts, reference to the consumer's electronic signature, a consent-not-required disclosure, and an alternative path to obtain the service without consenting to marketing communications. When all of these elements are present and the language is above the button, you have a defensible consent record, particularly when paired with documentation of the timestamp, IP address, and page version where consent was captured.
14-Point TCPA Consent Checklist for Insurance Agents
Use this checklist every time you review consent language on a lead form, landing page, or partner intake flow. If any item is missing, the language needs to be revised before you use it for outreach.
Clear Acceptance Method. The consumer must take an affirmative action, checking a box or clicking a clearly labeled CTA button, to demonstrate consent. Passive behavior like continuing to browse the page is not sufficient. Courts have been explicit on this point.
Consent to SMS/MMS/Text Messages. The language must specifically cover text messages. If your outreach includes texting, and for most insurance agents it does, a disclosure that only mentions "calls" leaves you exposed for every text sent.
Consent to AI-Generated Voice Calls. The FCC has confirmed that AI-generated voice is covered under the TCPA's prerecorded or artificial voice provisions. Your disclosure must specifically reference AI-generated or artificial voice calls if you use or intend to use AI voice technology. Several states have already addressed the use if AI and insurance agencies should be prepared for the consent language to disclose the use of AI.
Consent to Marketing and Promotional Messages. Marketing and promotional communications require prior express written consent under current TCPA regulations. The disclosure must make clear that the consumer is consenting to receive marketing, not just informational or transactional, messages.
Disclosure Placed Above the CTA. The consent language must appear above the button or submission mechanism, not below it. This ensures the consumer sees the disclosure before taking action and addresses visibility in mobile experiences where content below a button may not be visible without scrolling.
Reference to Electronic Signature. The language should expressly state that the consumer's action constitutes their authorized electronic signature, establishing the written consent record required under the TCPA.
Authorization for Affiliated Companies and Third Parties. If you use a dialing vendor, an AI voice platform, or affiliated agencies to make calls on your behalf, the consent language must authorize contact from those parties. Without this, your vendor's calls may not be covered by your consent record.
Specific Disclosure of ATDS. The consumer must consent to your use of an automatic telephone dialing system specifically. Generic references to "automated technology" are better than nothing, but explicit ATDS disclosure is stronger and demonstrates the consumer understood the specific technology involved.
Consent-Not-Required Disclosure. This is a statutory requirement. The consumer must be told that consent to receive marketing communications is not required as a condition of purchasing your service or product. Missing this element exposes you to the full weight of the TCPA's statutory damages provisions.
Alternative Path to Obtain the Service. The consumer must have a genuine way to obtain what you are offering without giving marketing consent. A common approach is providing a phone number or alternative contact method that does not require form submission.
Specific Consent to Prerecorded or Artificial Voice. Separate from the ATDS disclosure, the language must cover prerecorded voice messages specifically. If you use a pre-recorded introduction, an IVR system, or any form of artificial voice, this needs to be in the consent language.
Checkbox as the Acceptance Mechanism. A checkbox that is not pre-checked is the most defensible acceptance method available. It requires the consumer to take a specific action directed at consent rather than a general form submission, and it creates a cleaner documentation record.
Identified Seller and Reasonable Partner List. The consent language must identify you by name as the seller. If you are operating a co-registration or shared consent model, the partner list must be reasonable in size. Under the FCC's current framework, each seller should ideally be obtaining consent independently.
Phone Number Collection on the Same Page. The phone number being consented to contact must be collected on the same page as the consent language. Consent obtained on a different page from where the number was entered creates a documentation gap that can be exploited in litigation.
Getting It Wrong Is Far More Expensive Than Getting It Right
TCPA compliance for insurance agents is not complicated in theory. It is just unforgiving in practice. The consent language you deploy today is the documentation you will rely on if a class action lawsuit is filed two years from now. Getting it right upfront is significantly less expensive than defending it after the fact.
The 14 elements above are not suggestions. Each one addresses a specific litigation vulnerability that plaintiff's attorneys actively look for. A consent language audit against this checklist is one of the highest-ROI compliance activities an insurance agent can undertake, and it costs almost nothing compared to the exposure it eliminates. If you want to review your current consent language against these standards or need help structuring your lead generation program for compliance, that is exactly the kind of work my practice focuses on.
What Insurance Agents Need to Remember About TCPA Consent
• Prior express written consent requires three things working together: an affirmative consumer action, a specific disclosure of the technology being used, and documentation of when and how consent was captured.
• Vague consent language is an invitation to litigation. Generic phrases like "we may contact you" or "marketing partners" give plaintiff's attorneys exactly the ambiguity they need to survive a motion to dismiss.
• The checkbox must be unchecked by default. Pre-checked boxes do not satisfy the affirmative action requirement under current FCC guidance.
• Vendor consent is your risk, not just theirs. If you are buying leads from a third party, you are betting on their compliance. Require consent documentation from every lead source and audit it regularly.
• Review consent language every time your technology changes. Adding AI voice, switching dialers, or expanding to SMS each requires a corresponding update to your consent disclosures before you use the new technology.
• The cost of getting consent right is a fraction of the cost of defending against a TCPA class action, even one you ultimately win.
