It has been widely publicized that a class action lawsuit has been filed against a large national brokerage for alleged violations of the Telephone Consumer Protection Act (“TCPA”) and related regulations. According to the lawsuit, the brokerage continuously called the named Plaintiff to market its services in violation of the National Do-Not-Call provisions of the TCPA.

Because many REALTORS^® engage in the business practice of “cold-calling” prospects, the Arizona REALTORS^® has received questions from members seeking to comply with the law. Below is a collection of some of the questions that have been posed.

Q1. What is the National Do-Not-Call Registry?

A1. The registry is a compiled list of phone numbers from consumers who have registered their preference to limit the telemarketing calls they receive. Telemarketers are prohibited from calling registered phone numbers unless certain criteria are met.

Q2. Where can REALTORS^® go to search the National Do-Not-Call Registry?

A2. A telemarketer can receive access to the database by registering on the FTC’s website. Once registration is complete, the telemarketer will receive a unique identification/account number. Five area codes will be provided at no charge and additional ones will cost $54 per area code, up to a maximum annual fee of $14,850 for access to the entire National Do-Not-Call Registry.

Q3. If a brokerage registers for access to the National Do-Not-Call Registry, can the brokerage share its identification/account number with its agents?

A3. Yes. A brokerage can share with its agents the company’s identification/account number, thereby allowing agents within the same brokerage the ability to access the registry using the same account.

Q4. Does placing one’s phone number on the National Do-Not-Call Registry stop all unsolicited calls?

A4. No. Telemarketers are permitted to contact individuals on the National Do-Not-Call Registry if the parties have an “established business relationship.” Relationships that meet this exception include: (i) consumers who have purchased, rented, or leased goods or services from the caller or engaged in a financial transaction with the caller within the 18 months immediately preceding the date of the telemarketing call; and (ii) consumers who inquire about or apply for a product or service offered by the specific caller within three months immediately preceding the date of the telemarketing call. However, if the recipient of the call instructs the telemarketer not to call them again, future contact cannot be made. Other types of calls that are permitted include political calls, charitable calls, debt collection calls, and surveys.

Q5. Are robocalls legal?

A5. A robocall is a phone call that plays a recorded message. In October 2013, the Federal Communications Commission (FCC) eliminated the established business relationship exception as applied to prerecorded telemarketing calls. As such, any robocall that is selling a product or service is illegal unless the recipient has given the caller written permission to contact them in that manner.

Q6. Does the TCPA allow REALTORS^® to call a For Sale By Owner (FSBO) seller in their capacity as a buyer’s representative who believes that their client may be interested in purchasing the FSBO property?

A6. Yes. Even if the FSBO seller is registered on the National Do-Not-Call Registry, the REALTOR^® can call the seller because the call is not placed for the purpose of soliciting business from the seller. Therefore, provided that the call is limited to discussing their client’s interest in the property, the call can be made.

Q7. Does the TCPA allow REALTORS^® to call a FSBO seller in an effort to secure the listing?

A7. A call of this nature is placed in an attempt by the REALTOR^® to market their services. Unless an “established business relationship” exists, the law prohibits the REALTOR^® from initiating a call of this nature if the seller is registered on the National Do-Not-Call Registry. The same is true for calls a REALTOR^® may place to an expired listing.

Q8. Can REALTORS^® obtain phone numbers from lead generation companies and rely on the established business relationship shared between the consumer and the lead generation company?

A8. Telephone calls from telemarketers to phone numbers provided by lead generators generally do not fall within the established business relationship exception because, while the consumer may have a relationship with the lead generator, they do not have an established business relationship with the REALTOR^® who purchased the leads. Unless the consumer inquired into the services of a specified REALTOR^® or brokerage, or the lead generator made disclosures that would alert the consumer that they should expect telemarketing calls from the REALTOR^® as a result of their communications with the lead generator, the REALTOR^® cannot claim that they have a relationship with the consumer.

Q9. Can REALTORS^® trust that lead generation companies will not provide them with phone numbers registered on the National Do-Not-Call Registry?

A9. Unfortunately, lead generators responsible for “call verified,” “permission-based,” or “opt-in” leads often fail to remove numbers listed on the National Do-Not-Call Registry. In several enforcement actions, businesses that made telephone calls to consumers on the registry after acquiring the consumer’s name from a lead generator ultimately paid civil penalties to settle charges that their calls violated the TCPA. To be safe, before using a list obtained from a lead generator, REALTORS^® should access the National Do-Not-Call Registry and remove from the list all registered phone numbers.

If you are unsure of how any of the aforementioned laws and regulations impact your telemarketing activities, it is recommended that you consult with your attorney before taking any action.

Scott M. Drucker, Esq., a licensed Arizona attorney, is General Counsel & Assistant CEO for the Arizona REALTORS® serving as the primary legal advisor to the association. This article is of a general nature and reflects only the opinions of the author at the time it was drafted. It is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.