Yes. Since they are opting in again, you have consent again.

Yes, but you cannot send a text from an ATDS that says, “Sign up for our marketing program.” That message would be marketing in and of itself, and you would have already violated the Telephone Consumer Protection Act (TCPA). However, you could do a call to action that says, “For automated offers, text DISCOUNT to XYZ number…” When the consumer responds to your offer, request a double opt-in, and get the consumer to agree to the required disclosures. Always ensure full TCPA disclosures are utilized, as well as an opt-out instruction.

The Federal Communications Commission (FCC) has held that “written” consent can be obtained on a recorded telephone call, but you must ensure you meet all the requirements of the ESIGN Act or similar state laws regarding electronic signatures.

The Federal Communications Commission (FCC) issued a declaratory ruling in 2020 affirming that peer-to-peer (P2P) texting systems should not be considered automatic telephone dialing systems (ATDS). The Supreme Court's ruling in Facebook v. Duguid also ensures that P2P systems should not be regulated as autodialers.

Approximately 100,000 mobile phone numbers are reassigned by wireless carriers every day. Potentially 20% of data in an average consumer contact list could be made up of reassigned phone numbers. Therefore, theoretically, you could be liable for the maximum Telephone Consumer Protection Act (TCPA) violation of $500 per call or text on up to 20% of your entire campaign.

Commercial liability insurers have brought a growing number of cases seeking declaratory judgments that they do not have to provide coverage for their insureds’ alleged Telephone Consumer Protection Act (TCPA) violations. Some commercial liability policies have express exclusions for TCPA claims, while others may contain more general exclusions that may not fully exclude the TCPA. 

The best practices for avoiding Telephone Consumer Protection Act (TCPA) violations and the attendant lawsuits are as follows:

Make Sure You Have Clear Consent
In order for a court to proceed with a class action, the class must first be certified. When it comes to the TCPA, if the defendant can provide evidence of consent procedures, and prove consent for the individual plaintiff, the class as a whole, or a subset of the class, then the class certification may be denied.

Marketers can make Business-to-Business (B2B) calls/texts using an Automatic Telephone Dialing System (ATDS) provided they have proper consent. For marketing purposes, you must have express written consent. The written consent may be an e-signature or button press, but it must include the following disclosures:

The main provisions of the Telephone Consumer Protection Act (TCPA) are as follows:

Calling Time Restrictions
Companies can contact residential consumers only between 8:00 AM and 9:00 PM (recipient’s time zone).

Automatic Telephone Dialing Systems (ATDS)
The TCPA restricts autodialed marketing calls and texts to cell phones and other devices where the recipient might be charged for the call without written consent, and non-marketing autodialed calls without prior express consent.

Consent applies to the called party. So, if a number is reassigned to a different person, whatever consent you may have had for that number is no longer valid. Because the Telephone Consumer Protection Act (TCPA) is a strict liability statute—meaning violation is not contingent on fault or criminal intent—any call placed to a recycled number is a potential TCPA violation.