Violations of the Do Not Call Registry and Firm Liability
By: John Wait, Martin & Gifford, PLLC
Real estate firms may have significant exposure if their agents violate the Telephone Consumer Protection Act (“TCPA”). NC REALTORS® strongly encourages all firms to take active steps to ensure their affiliated broker’s complying with the TCPA in order to promote the health and reputation of our profession.
Vicarious liability can arise and expose a real estate firm to a complaint or lawsuit if an affiliated broker acts with actual or apparent authority on behalf of a firm and violates the TCPA. Vicarious liability is a principal of law that states a company can be held responsible for the actions of someone else acting on the company’s behalf. Since most affiliated brokers are pursuing prospects with the intent that these prospects will eventually become clients of the firm, and not the affiliated broker, firms must be active in ensuring that their affiliated brokers are in compliance with the TCPA to avoid claims of vicarious liability.
Complying with the TCPA at the firm level should involve at least the following:
- Train. Provide affiliated brokers with ongoing training and easy-to-follow guides for compliance.
- Monitor and Enforce. Make sure that affiliated brokers are following the TCPA with routine checks, and enforce consequences for noncompliance.
- Adopt a TCPA Compliance Policy and Procedure. Make sure the firm’s policy manual has a TCPA compliance policy requiring affiliated brokers, employees, and anyone else associated with the firm to follow Do Not Call procedures.
- Maintain a Do Not Call List. The list can be internal or a firm can use the National Do Not Call Registry. Make sure the list available for use and updated and scrubbed at least every 31 days.
Following these steps may allow a firm to assert protection under the TCPA’s Do Not Call Safe Harbor should an affiliated broker make a call in error that leads to a complaint or lawsuit.
The Federal Trade Commission has a comprehensive guide on the TCPA here, and the National Association of REALTORS® has an excellent, simple guide here. Firms should use these resources in conjunction with their legal counsel to safeguard against TCPA errors made by affiliated brokers.
If you have any questions about compliance with the TCPA, you may contact the Legal Hotline at 336-294-1415 or email legalhotline@ncrealtors.org.
NC REALTORS® provides articles on legal topics as a member service. Articles are general legal statements for member education only. They do not constitute legal advice. A private attorney should be sought for legal advice. This article is intended solely for the benefit of NC REALTORS® members, who may reproduce and distribute it to other NC REALTORS® members and their clients, provided it is reproduced in its entirety without any change to its format or content, including this notice, and provided that any such reproduction is not intended for monetary gain. Any unauthorized reproduction, use, or distribution is prohibited. ©Copyright 2021. North Carolina Association of REALTORS®, Inc.
