Calling or texting someone might seem like a minor infraction, but an increasing number of Florida brokers are facing lawsuits from disgruntled consumers thanks, in part, to certain law firms, including one that considers itself “text message lawyers.”
The lawsuits allege violations of the Telephone Consumer Protection Act (TCPA). The TCPA extends not only to consumers but to anyone (exemptions list below), including Realtors.
Texts
The TCPA prohibits text messages sent using auto dialers without A) consumer consent and B) the ability to opt out. Telemarketing texts require a signed consent. Non-telemarketing texts, like an appointment reminder, require prior express consent.
Any brokerage that uses texts for contact should have clearly stated consent forms and keep written records as to consent. If a consumer verbally agrees to allow you to send him non-telemarketing texts, for example, follow up with an email to reaffirm that consent.
In addition to consent, consumers must be given a way to revoke their consent by reasonable means. Most commonly, businesses do this by allowing the consumer to respond to the text with the word “STOP” or “UNSUBSCRIBE.” If the consumer requests a stop, it should be promptly addressed. Have a system in place to honor requests quickly and keep records to show that you followed through on the request.
Calls and faxes
The TCPA also covers robocalls and faxes, and there is a safe harbor provision for the Do Not Call portion of the TCPA. To potentially be covered by the provision, a company needs to show that it:
- has written procedures regarding compliance with the do-not-call requirements
- trains personnel in those procedures
- monitors and enforces compliance with those procedures
- maintains a company-specific list of telephone numbers that may not be called
- has accessed the national do-not-call registry no more than 31 days before calling a consumer
- maintains records of this process and can show that any call violation was made in error
TCPA Do-Not-Call exemptions
- Business-to-business calls
- Calls involving an established prior business relationship within 18 months preceding a call
- Calls to consumers who have given written permission to call
- Informational calls
- Survey and political calls
- Calls promoting a political party or candidate
- Non-profit organization solicitations for charitable contributions
Bottom line: Every brokerage that hopes to avoid an unexpected lawsuit should have internal policies and procedures specifically addressing the TCPA, a training program for everyone, and a process in place for monitoring compliance.
For additional information regarding the TCPA, visit NAR’s website.
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