The Telephone Consumer Protection Act (TCPA) remains a critical piece of legislation for real estate professionals engaged in marketing and client communication. Understanding and adhering to its regulations is not just about legal compliance; it’s about building trust and ensuring sustainable business practices. Recent updates from the Federal Communications Commission (FCC) have further emphasized the need for meticulous attention to these rules, particularly concerning the use of automated telephone dialing systems (ATDS) and obtaining explicit consent. For real estate businesses aiming for effective outreach while mitigating legal risks, establishing a comprehensive “learning library” of TCPA knowledge is paramount.
Understanding the Evolving TCPA Landscape
Last year’s FCC guidance clarified several key points that directly impact how real estate professionals communicate:
- Text Messages and Do-Not-Call Registry: The FCC unequivocally stated that Do-Not-Call Registry restrictions extend to text messages, not just phone calls. This means the same vigilance required for phone solicitations now applies to SMS marketing.
- One-to-One Consent: A significant rule change mandates that consent must be obtained directly by the seller of the product or service. This “one-to-one consent” rule means that relying on generalized consent or third-party lead generation without direct consumer agreement is no longer sufficient when using ATDS or artificial voice messages.
- AI-Generated Messages: The FCC explicitly included messages developed using generative AI under the umbrella of “artificial voice messages.” This forward-thinking clarification ensures that as technology evolves, TCPA regulations remain relevant and protect consumers from unwanted automated communications, regardless of their origin.
These updates, especially the One-to-One Consent Rule effective January 27, 2025, necessitate a proactive approach from real estate brokerages and agents. This rule demands prior express written consent from consumers before initiating robocalls or robotexts. Crucially, the consent must be a direct response to a clear disclosure that the consumer will receive such communications, and the content must be logically connected to the website or context where consent was given.
TCPA Implications for Real Estate Professionals: Staying Compliant
For many real estate professionals who rely on direct communication, the question arises: How do these rules affect my daily practices? The good news is that TCPA allows for marketing calls and texts without prior consent if you are not using an ATDS or prerecorded/artificial messages and are adhering to Do-Not-Call registry rules. [1] This is particularly relevant for agents who cultivate their networks and use carefully managed contact lists.
However, the line becomes blurry when leveraging technology for broader outreach. If your real estate practice utilizes ATDS or any form of automated messaging, strict adherence to consent requirements is non-negotiable. The key takeaway for real estate professionals is to build a “learning library” – a deep understanding of these nuances to guide their communication strategies. This “learning library” isn’t just about memorizing rules; it’s about embedding a culture of compliance and consumer respect within your operations.
Building Your TCPA Compliance “Hive”: Best Practices
To navigate these regulations successfully and minimize legal risks, consider implementing these best practices, effectively building a robust “hive” of compliant communication:
- Direct, Express Written Consent: Prioritize obtaining explicit written consent directly from consumers before any marketing calls or texts, especially if utilizing ATDS. This is the cornerstone of TCPA compliance under the One-to-One Consent Rule.
- Consent and Opt-Out Management: Maintain meticulous records of consumers who have provided consent and those who have opted-out. Regularly update these lists to ensure accuracy and prevent inadvertent non-compliance.
- TCPA/Do-Not-Call Policy and Training: Develop a clear and comprehensive TCPA/Do-Not-Call Registry policy. Crucially, routinely train all agents and staff on this policy. A well-informed team is your first line of defense against compliance errors.
- Regular Do-Not-Call Registry Checks: Before making any marketing communications, routinely check names and numbers against the Do-Not-Call Registry. This step is essential even when using third-party platforms or ATDS, as ultimate responsibility for compliance rests with you.
- Vendor Due Diligence: Thoroughly review the terms of service with any vendors used for obtaining phone numbers or automating communications. Request warranties of TCPA compliance from these vendors and seek indemnification against potential TCPA and Do-Not-Call Registry liabilities.
- ROI vs. Risk Assessment: Before incorporating ATDS and artificial voice messages into your marketing strategies, carefully evaluate the return on investment against the potential risks of TCPA liability. Ensure the benefits truly outweigh the legal and financial exposures.
Most real estate professionals thrive on personalized communication and carefully built networks. However, if your business model incorporates ATDS or automated messaging, establishing a strong “learning library” of TCPA knowledge and rigorously following consent protocols are vital for sustainable success and avoiding costly legal repercussions.
For further in-depth information, the National Association of REALTORS® (NAR) provides valuable resources:
- NAR Telemarketing & Cold Calling Guidance
- NAR Window to the Law: Updated TCPA Compliance Video
- NAR TCPA Quick Reference Card
- FCC Consumer Guide
Stay informed about TCPA and FCC regulations as they evolve. Building your “learning library” is an ongoing process, and continuous updates will be crucial for maintaining compliance and best practices in real estate communication. MAR will continue to provide updates and resources as they become available.
[1] Note: In 2021, the Supreme Court’s Facebook v. Duguid decision clarified that TCPA consent requirements for ATDS apply specifically to systems with the capacity to use a random or sequential number generator to store or dial numbers.
