More Telemarketing Lawsuits Ensnare Agents, Brokerages

The FCC is stepping up enforcement of the Telephone Consumer Protection Act and the National Do Not Call Registry. Some real estate pros are being accused of unlawfully using telemarketing calls and texts for promotional purposes. Here’s how to stay out of legal trouble.

Real estate professionals may use cold calling to strike up phone or text conversations with new prospects they haven’t met yet. But watch who you call.

Agents and brokers who are accused of breaking telemarketing laws can find themselves mired in legal trouble. In one recent case, Keller Williams was named in a class-action lawsuit accusing one of the company’s agents of making unwanted telemarketing calls and sending messages in violation of the Telephone Consumer Protection Act and the National Do Not Call Registry. Keller Williams has denied any wrongdoing.

The case serves as the latest example of brokerages and agents who’ve come under scrutiny during a rise in lawsuits over TCPA violations. “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,” Matt Troiani, senior counsel and director of legal affairs at the National Association of REALTORS®, says in the latest “Window to the Law” video.

The FCC has issued several new rules and updated guidance about the use of telemarketing calls by businesses. For example, the FCC clarified that the Do-Not-Call Registry restrictions also apply to text messages—not just phone calls—as well as artificial voice messages developed using generative AI. Further, the FCC says that the seller of a product or service must obtain consent directly from the consumer before using an automated telephone dialing system—a program that can call or text a batch of numbers all at once—or when sending artificial voice messages.

Precautions to Take

The best defense is to always obtain prior express written consent from the consumers you wish to call or text for marketing purposes, which is “considered the gold standard for protecting against TCPA liability,” Troiani says. In the latest “Window to the Law” video, Troiani also suggests several other best practices to stay out of legal trouble with TCPA laws, including:

  • Maintain and update lists of consumers who have given prior express written consent as well as 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 if you’re using a third-party platform or automated telephone dialing system.
  • Research your state laws to see if they have adopted a “mini-TCPA” law that may add further restrictions. 
  • Review the terms of service with any vendors you use for obtaining phone numbers or automating calls and texts. Ensure the vendor is also in compliance with the TCPA and Do-Not-Call Registry.

Troiani also urges brokerages to adopt a formal TCPA and Do-Not-Call Registry policy and to train agents and staff regularly.