Important Update to Telemarketing Rules
QUESTION: I have heard that big changes have been approved to the telemarketing rules. Can you explain what they are? Does this affect me as a REALTOR®?
ANSWER: For now, there is nothing you need to do as a REALTOR®, because the new telemarketing rules you mention have been struck down by the Eleventh Circuit Court of Appeals.
In December 2023, the Federal Communications Commission (FCC) adopted new rules to the Telephone Consumer Protection Act (TCPA). The new rules clarified that: (1) Do-Not-Call Registry restrictions apply to text messages and phone calls; (2) product and service providers must obtain direct written consent from a consumer, known as one-to-one consent, before contacting them with an automated telephone dialing system or sending artificial voicemails; and (3) artificial voice messages include messages developed using generative AI. You can read the FCC’s consumer guide, which goes into more detail, here.
Even though these changes will not take effect right now, it may be important to know what they require. Should the U.S. Supreme Court take up this case, they may reinstate the rules and implement a new date for compliance.
The rules state that brokers can use marketing texts and calls without prior direct, written consent from a consumer so long as the broker is not using a random or sequential number generator, prerecorded or artificial messages, and otherwise following Do-Not-Call Registry rules. NAR has created a simple to follow chart which you can reference here.
However, if you are using a number generator, prerecorded or artificial messages, an outside vendor that uses these methods, or any other telemarketing system that might trigger the new TCPA rules, then make sure you have a process in place to ensure compliance with the new rules. This may include, but is not limited to, the following:
1. Maintain and update a list of consumers that have given one-to-one consent.
2. Adopt a TCPA firm policy if you have not already; and if you have, make sure your current policy is updated.
3. Train agents in your firm for compliance with the new rules.
4. Review all vendor contracts, if any, to make sure the vendor warrants TCPA compliance.
It is important to understand that liability for a TCPA violation is not something that can simply be offloaded to a vendor. This is also true under the current TCPA rules. If you are using a vendor to obtain or communicate with leads, you may be liable for the actions of that vendor through a theory called vicarious liability. Vicarious liability is a legal theory where one party, the principal, can potentially be liable because of the actions of another party, the agent. In the context of TCPA compliance, this means that it is possible that a broker or firm, or both, could be held liable for the actions of a telemarketing vendor acting on the broker’s or firm’s behalf.
For now, you do not need to make changes to your practice to accommodate the new TCPA rules unless you wish to do so. Stay tuned for further updates.
Release Date: 1/23/2024, Revised 1/31/2025
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