As class-action lawsuits continue against major real estate brokerages for alleged telemarketing violations, firms of all sizes are under increasing pressure to strengthen their согласие practices.
According to attorney Michele Shuster, a founding partner of Mac Murray and Shuster LLP, staying within the bounds of federal and state telemarketing laws isn’t just a legal necessity — it’s vital risk management in today’s регулирующий climate.
“Obviously, the most important thing is [to] work with an attorney who understands telemarketing, because it’s such a unique area,” said Shuster, whose firm specializes in regulatory defense, government relations and compliance services.
“We literally start the day, every day, looking at research on the cases and seeing if there are any new developments at the regulatory agencies.”
Shuster’s comments follow recent litigation involving Компас и Келлер Уильямс in which plaintiffs allege that unsolicited calls were placed without proper consent, in violation of federal Do Not Call (DNC) regulations.
“In both of these cases, it was really the do not call laws that they ran into problems with,” Shuster explained. “And if they would have scrubbed against the Do Not Call list, or if they would have had consent, or if they’d made an inquiry to them, they wouldn’t have run into these problems.
“That’s really the three main areas that риелторы should be focusing on.”
Keller Williams was also named in a separate Telephone Consumer Protection Act (TCPA) suit that was filed in Texas in April 2024. The suit was dismissed earlier this year due to a failure to state a claim.
Meanwhile, changes to the TCPA — including a one-to-one consent rule — went into effect late this past January.
Under the consent rule, anyone soliciting a consumer’s business through a phone call or text message must obtain their written consent prior to sending robocalls or texts.
The consent provided by the individual must be “a clear and conspicuous disclosure that the consumer will receive robocalls or robotexts and the content of those contacts must be logically and topically related to the website where the consumer gave consent,” according to the Federal Communications Commission (FCC).
Offers to buy vs. offers of services
Shuster emphasized a key legal distinction in this area — calls that involve a bona fide offer to purchase a home versus calls that promote an agent’s services.
“There’s the people or the agents or the real estate companies who are reaching out that truly just want to buy the home, and so they’re making an offer to purchase that home,” she said. “And there’s a case recently where the court ruled on a summary judgment motion that an offer to purchase is not a telemarketing call, and therefore they dismissed the case.”
But Shuster warned that when an agent offers листинг services or маркетинг support to help sell a home, the rules change.
“I really want to distinguish here between … ‘I am going to buy your house. I’m not offering you any services or any of those types of things. I’m just truly reaching out to make you an offer to purchase your house’ (type of call), versus a real estate agent reaching out and saying, ‘Looks like you want to sell your house. And, you know, I can do these things to help you sell your house.’
“And that’s where they’re offering services and they’re really just supplanting a real estate agent. And that is a telemarketing call, because you’re marketing your services as a real estate agent.”
Express written consent due diligence
A cornerstone of telemarketing compliance is to obtain prior express written consent — particularly when using технологии like autodialers or prerecorded messages to contact consumers who may be on the National DNC Registry.
“Prior express written consent — which is the type of consent if you’re using regulated technology, basically — it’s consent to call somebody who may be on the Do Not Call list as well,” Shuster said.
“But prior express written consent has a very specific list of things that have to be included in consent language that you’re giving to the consumer, and the consumer is signing that and giving that back to you, basically, and saying. ‘You have my consent to call me.’
“The requirement for prior express written consent is obviously that it has to be in writing. You have to have in the consent language that the consumer is giving consent to call them using an automatic telephone dialing system or a prerecorded voice, that their consent is not required for purchase, and then they have to actually sign that. And if it’s an online form, you have to comply with eSign.”
This presents a major challenge for firms that collect leads over the phone.
“It’s really difficult to get prior express written consent over the telephone, because you can’t get a written signature with somebody over the telephone,” Shuster said. “This has really been a shock to the telemarketing world.”
When it comes to leads acquired through third-party forms, Shuster said consent is only valid if the lead identifies the specific company that will be contacting the consumer.
“What’s important is they have to identify the seller and the lead form,” she said. “In that language, they need to be giving that to the seller or the person who’s going to be making the telephone call.
“There are lead generation companies out there that get consent for the lead generation company to call them, and what they’re trying to do is find out what kind of other services that consumer might be interested in And so they try to get consent also for the seller. And the seller would be a Keller Williams or Compass, for example.”
Who’s most at risk?
While large brokerages face complex liability due to their broad networks, smaller operators are far from immune, Shuster said.
“With the large real estate companies, they have a lot of agents, a lot of independent agencies, and they have a lot of brokerages,” she said. “So in a large organization like that, it’s really important to have compliance processes and procedures that percolate down the whole the whole structure. You need to get them to other agencies and the agents and the brokers, and you have to train them on those types of things.
“If you don’t have the policies and procedures — and if you’re not giving those to the right people and you’re not training them — you have compliance risks there.”
For independent agents, “sometimes, I think it is just maybe a lack of awareness that they are a telemarketer when they’re making calls to sell their services,” Shuster said.
Consent logs and retention
Whether using websites or forms to gather leads, Shuster recommends keeping detailed and long-term records.
“If they’re using their website to collect leads, and they’ve got that consent language on their website, then they can keep electronic records for that,” she said. “It can be a database that’s collecting that info as it’s filled out. There are screen capture systems out there that will actually record that the person is there, going through the form and filling it out.
“You do have to disclose that you’re recording the movements, though, on the computer, because it’s monitoring or recording, and there are laws about that. You have to make sure you’re giving the right disclosures, but then keeping that database or keeping those screen captures, and you need to keep them for at least five years, because that’s the statute of limitations.”
Shuster offered a few candid final words for industry stakeholders.
“Make sure they reach out to a compliance attorney that understands telemarketing,” she said.
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