Real estate agents who rely heavily on cold calling may need to rethink some of their marketing tactics. Changes to the Telephone Consumer Protection Act (TCPA), including the one-to-one consent rule, go into effect on Monday, Jan. 27.
Under the consent rule, anyone soliciting a consumer’s business through a phone call or text message must obtain the consumer’s 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).
For real estate agents with a penchant for cold calling, this does not mean that they can no longer cold call. Agents are still allowed to send marketing calls and texts without prior consent, as long as they are not using a random or sequential number generator (ATDS) or pre-recordings and artificial messages. Additionally, agents must still adhere to existing restrictions through the National Do Not Call Registry.
Agents and brokerages who do not comply with the new rule are opening themselves up to liability and potential lawsuits. This is a lesson that agents at Coldwell Banker and NRT learned the hard way as they and their parent company, Anywhere Advisors, were named in a TCPA suit filed in a U.S. district court in Northern California in 2019.
Anywhere announced last month that it had settled the Bumpus suit after five-plus years of litigation. On Monday, the plaintiffs filed a motion for preliminary approval of the settlement agreement.
According to the proposed settlement agreement, Anywhere has agreed to pay $20 million into a settlement fund. The plaintiffs have proposed that the attorneys will receive 30% of the settlement amount, or roughly $6 million. Additionally, litigation costs of $892,373, the cost of the settlement notice of up to $475,000 and a $5,000 services award to the three class representatives will also come out of the settlement amount.
The proposed settlement agreement notes that Anywhere Advisors “has implemented changes to inform independent contractor real estate agents affiliated with its company-owned brokerages of TCPA requirements and to discourage them from violating any provision of the TCPA.”
Additionally, Anywhere Advisors has adopted a formal Do Not Contact Manual, and it is requiring all independent contractor real estate agents to execute a certificate of compliance with this manual upon affiliation. The company said it is also including TCPA warnings on training materials, and it periodically distributes TCPA reminders to all Anywhere-affiliated independent agents and franchisees.
The preliminary approval hearing in the case is scheduled for Feb. 27. At the hearing, the plaintiffs have asked the court to grant preliminary approval to the settlement and give preliminary certification of the settlement class, which they estimate at nearly 300,000 members.
Anywhere noted that the settlement is not an admission of wrongdoing. The company is not the only one facing allegations of TCPA violations. In April 2024, Keller Williams was named in a TCPA suit in a U.S. district court in Texas.
