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General

call center employees wearing headsets and typing on laptops

Telemarketing compliance is a complex field and many essential questions do not fit into a specific category.

Do TCPA and DNC regulations apply to the real estate industry?

There is an assumption that because real estate agents are independent contractors that Do Not Call (DNC) and Telephone Consumer Protection Act (TCPA) regulations do not apply to them.

Big businesses are often seen in the spotlight for being violators of these statutes and individuals may think that their actions will go unnoticed by Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulators—these assumptions are false.

Compliance is mandatory for real estate agents.

Are cell phones considered click-to-dial?

Cell phones are generally thought to be manual calling devices, like many click-to-dial systems. However, there has been no clear or consistent guidance from the Federal Communications Commission (FCC) or the courts as to whether or not a cell phone is considered a click-to-dial device. Telephone Consumer Protection Act (TCPA) compliance on this issue depends entirely on specific district court rulings for specific jurisdictions.

Are cell phones considered an autodialer?

It is not clear whether or not a cell phone would be considered an Automatic Telephone Dialing System (ATDS). In 2018’s ACA Int’l v. FCC decision, the D.C. Circuit Court struck down portions of the Federal Communications Commission’s (FCC) 2015 rule interpreting the Telephone Consumer Protection Act (TCPA) specifically because it would render every smartphone an autodialer. But the Ninth Circuit Court’s decision, six months later, in Marks v. Crunch San Diego, LLC does potentially render some smartphones as capable of being considered autodialers.

Can consumers revoke consent?

Yes. Moreover, recent court decisions have generally held that consumers can revoke their consent by any reasonable means. The Telephone Consumer Protection Act (TCPA) does not offer explicit guidance on revocation of consent, but it is best practice to recognize and honor all consent revocation requests immediately.

Does my consent expire?

There is no time limit or expiration date on consent. However, consent is tied to the called party, not the phone number. So if a number is reassigned to a new person, whatever consent you may have had for that number is no longer valid. Also, consumers can revoke their consent at any time and by any means.

Is there a call abandonment safe harbor?

The Telemarketing Sales Rule (TSR) safe harbor has a 3% call abandonment rule. Under the TSR, it is illegal for telemarketers to abandon any outbound call—with an abandoned call being defined as a call that does not connect the consumer to a sales representative within two seconds of the consumer answering the phone. But the TSR also makes some allowances for predictive dialers, which necessarily have a certain amount of abandoned calls because of how they operate.