The Federal Communications Commission (FCC) is a federal agency that regulates interstate and international communications through various channels. Among its responsibilities is regulating telemarketing to consumers. The FCC recently enacted new rules related to telemarketing, but due to ongoing litigation, it is currently unclear which rule(s) will ultimately take effect, or when they will become effective. In the meantime, it’s important to understand the current state of federal law regarding telemarketing to help keep yourself and your business out of legal trouble.

This article is not intended as legal advice. If you need legal advice regarding telemarketing by your business, please consult with an attorney.

The Telephone Consumer Protection Act

The Telephone Consumer Protection Act (“TCPA”) is, as the name suggests, a law that protects consumers from unwanted telemarketing calls. A telemarketing call is a call made with the goal of selling a product or service to the consumer. Examples in the real estate industry include, but are not limited to, calling a commercial property to try to sell your property management services, or calling a homeowner to get them to list their property with your brokerage.

Specifically, some actions prohibited by the TCPA are: 

• Certain unsolicited, prerecorded calls to landlines
• Unsolicited calls using a random or sequential number generator
• Sales calls before 8 AM or after 9 PM

As indicated by the above list, one of the TCPA’s major goals is to protect against telemarketing calls which are aided by technology. While the Act prohibits calls made using a random or sequential number generator and calls using a prerecorded message, it does not prohibit live calls made to numbers from a curated list. However, a live call to a number from a curated list would nonetheless be prohibited if the number appeared on the Do Not Call Registry. The Do Not Call Registry is a component of the TCPA which allows consumers to place their telephone number on a list, thereby indicating they do not wish to receive any type of unsolicited telemarketing call.  

Compliance with the TCPA, including the Do Not Call Registry, is critical. If a business is found to be contacting numbers on the Do Not Call Registry or placing illegal robocalls, it can be fined over $50,000 per call.  

Best Practices

Remember, the TCPA prohibits you from using a prerecorded message when placing a telemarketing call, meaning a live person will need to be the one making any calls soliciting business for your brokerage. The TCPA further prohibits the use of any machine which dials numbers in random or sequential order when making telemarketing calls. If you receive curated lead generation lists, you don’t have to worry about the prohibition relating to machines dialing numbers, but you will still need to ensure compliance with the Do Not Call Registry. It is your responsibility to ensure that any leads you receive don’t appear on the Registry before you contact them.  To do this, make a “Telemarketer” account with the Registry. This will allow you to download a copy of the Registry and search it for any number(s) you wish to call for telemarketing. Please keep in mind that the Registry is updated regularly, so you should re-download an updated list at least once per month.

It's also a good idea to check your contract(s) with lead generators to see if they offer you any protection from violations of the TCPA/Do Not Call Registry. This is helpful to know in the event an issue arises. However, even if your lead generator does offer you protection, it is still a best practice for you to manually cross-check the numbers with the Registry before contacting them.

You may contact a number which appears on the Do Not Call Registry if the consumer consents for you to contact them. Often, this happens by the consumer indicating their consent on your website or social media. However, it can also occur through other methods, such as verbal consent. Keep in mind that if a consumer provides their consent, it is not permanent. Err on the side of caution; if you think the consumer might not remember having given consent, the consent has likely expired. It’s critical that you maintain a regularly updated record of the people who have consented for you to contact them. If any of those people revoke their consent, that revocation should also be recorded. Such a list will help protect you in the event a consumer alleges you contacted them without consent.

If you’re a Qualifying Broker, it is your duty to ensure your employees and independent contractors understand the rules of the TPCA/Do Not Call Registry. You should include telemarketing rules and best practices in your office manual and ensure that the manual is updated any time the law changes. Moreover, you should hold office training and continuing education sessions regarding these topics multiple times per year.

For additional information regarding the TCPA and best practices, click here.