What brokers need to know about permission from Telemarketing

Shuster’s comments follow the recent lawsuits with regard to Compass And Keller Williams In which the plaintiffs claim that unsolicited calls were placed without the correct permission, in violation of the federal regulations (DNC) regulations are not.

“In both cases it was really the laws that they had not encountered any problems,” Shuster explained. “And if they had scrubbed against the Do Not Call list, or if they had had permission, or if they had done an investigation, they would not encounter these problems.

“Those are really the three most important areas on which brokers have to concentrate.”

Keller Williams was also mentioned in a separate function for consumer protection (TCPA) that was submitted in Texas in April 2024. The lawsuit was rejected earlier this year because of an absence to mention a claim.

In the meantime, changes in the TCPA-included a one-on-one consent rule-end of January are in force.

According to the consent rule, everyone who asks the company from a consumer must obtain written permission via a telephone conversation or SMS message before they send robocalls or texts.

The person’s permission must “be” a clear and striking disclosure that the consumer will receive Robocalls or robotexts and the content of those contacts must be logical and up -related to the website where the consumer has given permission “ Federal Communications Commission (FCC).

Offers to buy versus offers of services

Shuster emphasized an important legal distinction in this area – calls in which a bona fide offer is involved in buying a home versus calling to promote the services of a cop.

“There are people or the agents or the real estate companies who really just want to buy the house, and so they make an offer to buy that house,” she said. “And there is recently a case in which the court ruled on a brief ruling that is not a telemarketing application to buy, and therefore they have rejected the case.”

But Shuster warned that when an agent offers quotation services or marketing support to sell a house, the rules will change.

“I really want to make a distinction here between …” I’m going to buy your house. I don’t offer you any services or one of things like that. I just really contact you to make an offer to buy your house “(type of call), versus a broker who says out and says:” It looks like you want to sell your house. And, I know, I know, I know you want to sell your house. “

“And that is where they offer services and they really just replace a broker. And that is a telemarketing call, because you market your services as a broker.”

Explicit written permission due diligence

A cornerstone of the telemarketing compliance is to obtain previous explicit written permission – especially when using technologies such as cars or pre -recorded messages to contact consumers who may be in the National DNC register.

“Previous explicit written permission – what the type of permission is if you in principle use regulated technology – is the permission to call someone who may also be on the Do Not Call list,” said Shuster.

“But earlier express written permission has a very specific list of things that must be included in permission language that you give to the consumer, and the consumer signs that and in principle gives it back and says.” You have my permission to call me. “

“The requirement for earlier explicit written permission is of course that it must be in writing. You must have the consumer that the consumer gives permission to call them using an automatic telephone junction system or a pre -recorded vote, that their permission is not required for purchase, and then they must actually sign that. And if it is an online form, you must complicate with Esign.”

This is a major challenge for companies that come on the phone.

“It is really difficult to get earlier explicit written permission by telephone, because you cannot get a written signature with someone by telephone,” Shuster said. “This has really been a shock for the telemarketing world.”

When it comes to leads obtained through third -party forms, Shuster said that permission is only valid if the lead identifies the specific company that contacts the consumer.

“What is important is that they have to identify the seller and the main shape,” she said. “In that language they have to give that to the seller or the person who will make the telephone conversation.

“There are lead generation companies that get permission for the main generation company to name them, and what they are trying to do can be found in what kind of other services in which the consumer may be interested and so they also try to get permission for the seller. And the seller would, for example, be a Keller Williams of Compass.”

Who runs the most risk?

Although large brokers are confronted with complex liability because of their broad networks, smaller operators are far from immune, Shuster said.

“With the large real estate companies they have many agents, many independent agencies, and they have many brokers,” she said. “So in such a large organization it is really important to have compliance processes and procedures that decrease the entire structure throughout the structure. You have to take them to other agencies and the agents and brokers, and you have to train them on that kind of thing.

“If you do not have the policy and the procedures – and if you do not give them to the right people and you do not train them – you will have compliance risks there.”

For independent agents: “Sometimes I think it’s just a lack of consciousness that they are a telemarketer when they call their services,” Shuster said.

Permission slogs and custody

Whether it concerns websites or forms to collect leads, in order Shuster to keep detailed and long -term records.

“If they use their website to collect leads, and they have that permission language on their website, they can keep track of electronic data,” she said. “It can be a database that collects that info as it has been filled. There are screen recording systems that will actually record that the person is there, runs through the form and fill it in.

“You have to reveal that you take the movements, however, on the computer, because it is monitoring or recording, and there are laws over it. You have to ensure that you give the right disclosures, but then keep that database or keep them, and you have to keep them for at least five years, because that is the statutes of limitations.”

Shuster offered a few frank definitive words for stakeholders in the industry.

“Make sure they contact a compliance lawyer who understands telemarketing,” she said.