When a TCPA dispute lands, the question isn't whether the plaintiff can prove they didn't consent, it's whether you can prove they did. The burden of proving consent generally falls on the sender, and that single fact explains why records matter so much in political texting. A campaign that texted with real consent but can't document it is in nearly the same position as one that had no consent at all. Here's how the burden works.
Who has to prove consent?
Generally, the sender. In TCPA litigation, courts commonly place the burden of proving consent on the party who sent the messages, not on the plaintiff to prove they didn't agree. That flips the intuition: you might expect the person claiming a violation to prove the negative, but in practice the campaign has to come forward with evidence that the recipient consented. So "we're pretty sure they opted in" isn't enough, you have to show it.
Why does this matter so much?
Because it makes your records the entire defense. If the burden is on you to prove consent, then the presence or absence of a documented opt-in decides the case. A campaign with a clean record, this number opted in via this method on this date, can meet the burden; one that texted from memory, assumption, or a discarded list cannot, even if the consent was genuinely real at the time. The burden of proof is why unprovable consent is effectively worthless: the law doesn't care that you had it if you can't demonstrate it.
What does it mean for how you run a program?
Document everything, and keep it. Every opt-in should be captured with the method and timestamp, every opt-out logged, and the whole record retained for years, because the claim can arrive long after the send. Think of it this way: you're building the evidence file for a dispute that may never come, but if it does, that file is what wins it. This is why disciplined programs treat recordkeeping not as bureaucracy but as insurance, the burden is on you, so the record is your protection.
Frequently asked questions
Who has the burden of proof in a TCPA case?
Generally the sender, who must prove the recipient consented, rather than the plaintiff proving they didn't. That flips the usual intuition and puts the evidentiary weight on the campaign.
Why does the burden of proof matter for campaigns?
Because it makes your records the defense. If you have to prove consent, a documented opt-in wins and unprovable consent loses, even if the consent was genuinely real. The record decides the case.
What records prove consent?
An opt-in captured with the method and timestamp, tied to the specific number, plus a log of any opt-out, retained for years. "We were pretty sure they opted in" doesn't meet the burden; a documented record does.
Keep reading: recordkeeping for text compliance and TCPA lawsuits against campaigns. For the rules, see the FCC.
This is general information, not legal advice, current as of the date above; consult counsel.