This was evidenced by the recent $40 million settlement by Keller Williams and $20 million settlement by Realogy Holdings Corp. (now Anywhere Real Estate) of class action suits filed over the TCPA. As a real estate agent, if you use phone calls or text messages to generate business from prospective or past clients, it’s more important than ever to ensure your activities comply with the TCPA and similar state-specific laws that may apply.
Overview of the TCPA
The TCPA is a federal law that governs telemarketing activities in the US by:
- regulating the use of technologies, such as automated or pre-recorded text messages, calls, and voicemails; and
- prohibiting solicitation calls to individuals on the National Do-Not-Call (DNC) Registry, subject to certain exceptions.
Though the TCPA is well established (it was signed into law in 1991), new rules and updated guidance from the FCC went into effect earlier this year. These changes were designed to tighten consent protocols, regulate automated communication, impose stricter penalties for violations, and promote greater clarity around consent revocation. However, some were subject to legal challenges, as was discussed in the FCC’s Order postponing the One-to-One Consent Rule and NAR’s Window to the Law: FCC One-to-One Consent Rule Vacated.
State mini-TCPA laws
Many states have also enacted their own version of the federal TCPA, often referred to as mini-TCPA laws, following the US Supreme Court’s 2021 ruling in Facebook v. Duguid, which narrowly defined automated telephone dialing systems (ATDS) regulated by the TCPA. These state laws may impose greater restrictions on you regarding how recipients can be contacted and for what purposes. Whether a state’s mini-TCPA law applies to your activities will depend, in part, on the physical location of the person being called or the area code of the phone number being dialed.
Implications for real estate agents
These recent updates to the TCPA rules and the emergence of mini-TCPA laws could significantly impact your marketing strategies and client communications. To avoid violations, consider the following:
- Re-evaluation of marketing strategies: The new requirements and restrictions on auto dialers may lead you to rethink your marketing strategies to prioritize personalized communication and genuine engagement over unsolicited marketing efforts. Traditional methods, such as cold calling, may become less viable, prompting you to explore alternative methods of outreach since certain activities, such as manual calls and texts, emails, mailings, or social media campaigns, are not regulated by the TCPA.
- Enhanced record-keeping practices: Implement robust record-keeping practices. This includes maintaining detailed logs of consent obtained from clients and prospects, which can be crucial in the event of a dispute. It may also require you to update your existing contact list and customer relationship management processes to ensure compliance with the new requirements.
- Training and compliance: Educate and train staff about the new TCPA rules to ensure compliance, e.g., how to maintain and update lists of consumers who have provided the required consent as well as those who have opted out of marketing communications; or how to routinely check names and numbers against the DNC Registry. These steps can help you avoid unintentional violations and the associated penalties.
- Legal consultation: Given the complexities of the new TCPA rules, consulting with legal experts specializing in telecommunications law can help to ensure that your marketing practices align with the latest regulations and mitigate the risk of regulatory and legal issues. If you use vendors for lead generation or outreach, your attorney can also help you review your agreements and vendor policies to verify compliance with the TCPA and DNC Registry, and to negotiate for appropriate warranties and indemnification by vendors for TCPA liability.
Victor can help
While the new TCPA regulations may seem daunting, they can also provide an opportunity. By understanding the implications of these changes and adapting your marketing strategies accordingly, you can navigate these changes confidently and in compliance with the law.
Victor is here to help. That’s why we’ve added TCPA Fees and Expenses Coverage to our errors and omissions (E&O) policy form. This offers you coverage of up to $50,000 per policy period for reasonable and necessary legal fees incurred while responding to actions brought under the TCPA, subject to certain terms and conditions. To learn more about our TCPA Fees and Expenses Coverage or to receive a free quote today, visit our website and complete an application. If you're a member of the National Association of REALTORS®, be sure to note your NAR member ID on the application.
Victor and NAR have partnered under NAR REALTOR Benefits® to provide a first-class E&O insurance program for REALTORS®. Several premium credits are available, as allowed by state law, including credits for being an NAR member and holding select NAR designations.
To learn more, please email realestate.us@victorinsurance.com.
