Real estate professionals use telemarketing calls and texts to promote their services to consumers, which can be an effective tool when implemented in compliance with relevant laws. Under a new Federal Communications Commission (FCC) rule taking effect January 27, 2025, agents and brokers promoting real estate services must obtain consent directly from the consumer, known as 1-to-1 consent, before using an automatic telephone dialing system (ATDS) or sending artificial or prerecorded voice messages.
What is TCPA?
Real estate professionals use telemarketing calls and texts to promote their services to consumers, which can be an effective tool when implemented in compliance with relevant laws. But with the recent uptick in Federal Communications Commission enforcement actions, along with consumer lawsuits filed against brokerages alleging violations of the Telephone Consumer Protection Act, it’s more important than ever that real estate professionals ensure their telemarketing activities comply with the TCPA and the growing number of mini-TCPA laws enacted by states around the country.
The TCPA is a federal law that requires prior express consent be obtained prior to using an automated telephone dialing system to make telemarketing calls or texts. Failure to obtain such consent can lead to legal liability, costly litigation, and exorbitant penalties.
The FCC has also recently issued several new TCPA rules and guidance, including that:
- The Do-Not-Call Registry restrictions clearly apply to text messages as well as phone calls;
- The seller of a product or service must obtain consent directly from the consumer, known as 1-to-1 consent, before using an ATDS or sending artificial voice messages; and
- Artificial voice messages include messages developed using generative AI.
While the legal landscape continues to evolve, brokerages and agents should continue to incorporate these best practices:
- Obtain prior express written consent directly from consumers you intend to call or text for marketing purposes, considered the gold standard for protecting against TCPA liability.
- Adopt a TCPA/Do-Not-Call Registry policy and routinely train agents and staff on the policy.
- Maintain and update lists of consumers who have given prior express written consent and those who have opted out of marketing communications.
- Be sure to routinely check names and numbers against the Do-Not-Call Registry before calling or texting, even when using a third-party platform or ATDS.
- Know your state law and whether it has adopted a “mini-TCPA” law.
- Review the terms of service with any vendors you use to obtain phone numbers or automate calls and texts and ask that the vendor warrant its compliance with the TCPA and indemnify you from TCPA and Do-Not-Call Registry liability.
- Finally, be sure to weigh the return on investment before incorporating ATDSs and artificial voice messages into your marketing practices to be sure the benefit outweighs any risk of TCPA liability.
By following these best practices, real estate professionals can reduce the risk of TCPA liability while successfully leveraging telemarketing calls and texts as part of their promotional strategy.
For more information:
https://www.nar.realtor/videos/window-to-the-law/updated-guidance-tcpa-compliance
