Lead generation and phone marketing technologies have made it increasingly easy for real estate agents to market their services through phone calls and texts to prospective homebuyers and sellers. But this could be a slippery slope, as such technology potentially exposes real estate professionals to more legal risk than ever.

  • What to know about autodialers, the Do Not Call list, written consent and more.

More and more homeowners are bombarded by dozens of calls and texts after they remove a property from the multiple listing service (MLS) or list a home without an agent.

Lead generation and phone marketing technologies have made it increasingly easy for real estate agents to market their services through phone calls and texts to prospective homebuyers and sellers.

But this could be a slippery slope, as such technology potentially exposes real estate professionals to more legal risk than ever. The Federal Communications Committee (FCC) and courts around the country are still working out how privacy laws apply to text and phone marketing tools, so agents should tread carefully when using the technology.

The Do Not Call Registry

The Federal Trade Commission (FTC) prohibits marketers from calling or texting both cell and home phone numbers on the Do Not Call Registry or contacting consumers who have previously asked the marketer to leave them alone.

To comply with these rules, real estate agents should scrub lead phone numbers against the Do Not Call list, or ensure any numbers they receive from lead providers have undergone similar screening.

They also should maintain a list of people who have asked that they not be called.

Ignoring the registry can be extremely costly, carrying a civic penalty of up to $40,654 for each violation.

Mark Dabertin

Mark Dabertin, an attorney at Pepper Hamilton, notes that some marketers inadvertently violate the Do Not Call List when they dial or text cell phone numbers. That’s because these callers mistakenly believe that cell numbers are not included on the Do Not Call List, he said.

Making calls to cell numbers is also risky because millions of consumers are transferring their home phone numbers to cell phones, and the Telephone Consumer Protection Act (TCPA) has different rules for making calls to cell numbers versus calls to home numbers.

“[The] trend of such transfers is accelerating,” Dabertin said. “This means that marketers who believe they are calling home numbers are at an ever-greater risk of violating the law.”

Telephone Consumer Protection Act

Respecting the Do Not Call list is straightforward, but navigating laws that govern the use of phone marketing technology? Less so.

The TCPA prohibits the use of “autodialers” to call or text cellphones, unless the recipient has provided “prior express written consent” to receive such communications.

This rule applies to both manually written text messages and pre-written text messages (also known as “robotexts”), as well as to calls from real people and “robocalls,” according to Dabertin.

Breaking this rule carries a minimum penalty of $500 for each violation.

What’s an ‘autodialer’?

The Federal Communications Commission (FCC) defines an autodialer as equipment with the “capacity” to both “store or produce telephone numbers to be called, using a random or sequential number generator” and to dial those numbers “without human intervention.”

The use of “capacity” in the FCC’s definition means that technology with only the potential to facilitate mass dialing (or texting), even if it lacks the “the present ability” to do this, cannot be used to contact people without their prior express written consent, Dabertin said.

Moreover, whether equipment requires “human intervention” can only be determined on a case-by-case basis, according to the FTC.

The FCC has ruled that both “predictive dialers” — which call multiple numbers at the same time to increase efficiency — and “internet-to-phone” text-messaging technology are autodialers.

“The risk for calls made by real persons exists where a predictive dialer is used in making the call and an actual representative (versus a recorded message) comes on the line if the call goes through,” Dabertin said.

The ambiguity of the FCC’s definition of autodialer has had a chilling effect on many marketers, but many real estate agents may have missed the memo.

What’s ‘prior express written consent?’

To get prior express written consent, marketers would have to secure a written agreement bearing a signature and language authorizing a marketer to send autodialed communications, among other features, the FCC warned PayPal in 2015.

So what does this all mean?

Real estate agents who manually look up or buy the numbers of prospects could text or call consumers at those numbers without their prior express written consent, provided they do not use an autodialer and the numbers are not on the Do Not Call list, Dabertin says.

Since the definition of autodialer is hazy, they should be cautious when using any type of lead generation or phone marketing technologies to contact leads, and they should ensure that leads have provided their express written consent to receive texts and phone calls via such technology.

Email Teke Wiggin.

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