Vicarious liability is defined as an attachment of responsibility to a party for harm or damages caused by another party in a lawsuit or civil action.
It is a common practice for many businesses to market their products through the use of independent sales forces and lead aggregator websites. While these can be great sources for obtaining fresh leads, they can also be a trap for Telephone Consumer Protection Act (TCPA) litigation.
Political campaigns get a small amount of wiggle room when making calls or sending texts using an Automatic Telephone Dialing System (ATDS). Calls to landlines numbers do not require consent and it is not required to suppress numbers against the National Do Not Call (DNC) Registry. However, calls or texts to wireless numbers require prior express consent.
Further Reading
So long as consumers are not charged and can easily opt-out, delivery companies are exempt from obtaining consent under the Telephone Consumer Protection Act (TCPA) when sending delivery notifications. Standard non-marketing and opt-out rules apply.
If a for-profit organization is making calls or texts on behalf of a non-profit or political campaign and the calls or texts are not substantially related, they would be subject to the Telephone Consumer Protection Act (TCPA). Additionally, if there is a commercial message as any part of the communication, even if it also contains a charitable or political purpose, it is considered a “telephone solicitation” under the TCPA.
The best practices for avoiding Telephone Consumer Protection Act (TCPA) violations and the attendant lawsuits are as follows:
Make Sure You Have Clear Consent
In order for a court to proceed with a class action, the class must first be certified. When it comes to the TCPA, if the defendant can provide evidence of consent procedures, and prove consent for the individual plaintiff, the class as a whole, or a subset of the class, then the class certification may be denied.
As an agent, you can call homeowners who originally listed their home with you for up to 18 months after the contract expiration date. Calling during that period of time is allowed as long as the homeowner has not requested that you do not call them.
As an agent, you may contact a seller marketing a for sale by owner (FSBO) property about your client’s potential interest in purchasing the property, even if that seller’s number is on the National Do Not Call (DNC) Registry. The pitfall is that as a buyer’s representative, you may only discuss your client’s interest in the property. You cannot use your client’s interest as a way to solicit the listing. Doing so puts you in violation of DNC regulations.
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.