Phone Solicitation and the Do Not Call Registry

QUESTION: I am a former seller (not a broker), and my property has been off the market for a year. It never sold and the listing is long expired. I receive at least five phone calls a day right now from agents asking to list my property. I am on the Do Not Call Registry, and I am about to go find a lawyer to stop this nonsense. Can agents call me like this when I am on the Do Not Call Registry?

ANSWER: Probably not. Brokers are required to follow all laws relating to the Do Not Call Registry. If a broker obtains leads from a lead referral provider or their firm, the broker has a duty to make sure those leads are not on the Do Not Call Registry. If the lead is on the Registry, the broker must determine whether calling the lead fits into one of the exceptions to the Do Not Call Registry before calling. Exceptions include, but are not limited to: (1) Calls to a FSBO seller if an agent represents the buyer (not seeking a listing); (2) Calls made to someone the broker has a personal relationship with; (3) Calls to a current client; (4) Calls to a former client of the firm for up to 18 months; and (5) Calls to people who have given the broker permission, despite their Do Not Call status. For more information, you can read our guide on the Do Not Call Registry here.

This past April, the United States Supreme Court reiterated that phone solicitations cannot be conducted using a random number generator, but held that brokers can use their cell phone to call leads so long as the Do Not Call rules are followed. You can see NAR’s brief video outlining the decision in Facebook v. Duguid here. To see all of NAR’s resources on how to comply with the Do Not Call Registry, visit their website here.

The fines and potential penalties for violating the Do Not Call rules are significant, and this area of the law is subject to frequent litigation by plaintiff’s attorneys. Hiring a call service to make calls to leads may not offer protection if a lawsuit is filed. Agents should take active steps to ensure compliance in order to avoid legal complications. Also note that firms should have a policy in their office manual concerning compliance with the Do Not Call Registry. Such policies help shield firms if there is an inadvertent violation of the Do Not Call rules. A broker’s failure to comply with a firm’s policy could have separate consequences.

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