Currently, NAR reports that NAR in the process of working on a TCPA update Window to the Law to be released in the near future. In the meantime, here is some practical guidance for members that comes to mind:
- Brokerages should consider adopting a TCPA/Do-Not-Call Registry policy and train their salespersons and staff on the policy. This may provide some protection to the brokerage under the Safe Harbor provision.
- As a part of this policy, brokerages and salespersons should maintain lists of consumers with whom they have express written consent to contact and, more importantly, those consumers who have opted out of marketing communications.
- Members should always check names and numbers against the Do-Not-Call Registry before calling or texting, even when using a third-party platform, automated dialing system or sending artificial voice messages.
- Artificial voice messages include AI-generated messages.
- Member should see if their state has adopted so-called “mini-TCPA” laws which expand the definition of what constitutes automated dialing from the federal standard and further restrict the days and hours during which calls and texts can be sent.
- As you suggested, members should review the terms of service or contracts with any third-party services or platforms they use to obtain contact information, dial and/or text to see whether the service will warrant compliance with applicable laws and/or indemnify users. I doubt most of these platforms would agree to do so, but this leads to the final practical suggestion:
- Members should consider whether the return on investment in using these automated platforms is worth the potential risk of liability under the TCPA. The FCC is clearly stepping up enforcement and we are seeing TCPA class action litigation initiated against brokerages around the country. This may give members an opportunity to consider whether the potential marketing benefits outweigh the liability risks
Additional information:
Risk Management: Marketing Calls, Texts, Emails, Robocalls, Robotexts, Lead Generation Services
Be careful!
Homeowners get upset about getting marketing calls, especially robocalls and that can lead to complaints being filed.
Brokerages should have policies and lawyer risk management and brokerage do not call registry for when your agents are told to never call.
Ensure your defense trial lawyers look at your agreements with lead generation services for their compliance, insurance, and even indemnification capabilities should they get you into trouble.
US mass mailers are safer.
Emails that state the email is a commercial solicitation and connects to a reliable process to ensure that free opt out of future emails works.
Here are some NAR links on the topic:
https://www.nar.realtor/videos/window-to-the-law/tcpa-and-texting
https://www.nar.realtor/window-to-the-law/tpca-update-on-cell-phone-marketing
https://www.nar.realtor/window-to-the-law/comply-with-the-do-not-call-registry
https://www.nar.realtor/references-150
https://www.nar.realtor/telemarketing-cold-calling
Posted by: Byron King on 02/12/24 (This information is only accurate as of 02/12/24. You must contact SCR for updates and changes to this information after 02/12/24 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org or email byron at screaltors.org)
This information is not legal advice. This information is intended only to provide general information and may not be relied upon as specific legal guidance. Legal counsel should always be consulted before acting in reliance on this information.