Two Florida brokerages face lawsuits related to auto-texting!

Two Florida brokerages face lawsuits related to auto-texting

By Meredith Caruso, Florida Realtors

April 15, 2019 – Do you use auto-texting services? If so, failure to ensure compliance with the law could result in a lawsuit.

Recently, lawsuits were filed against two Florida brokerages alleging violations of the Telephone Consumer Protection Act (TCPA). Both lawsuits allege the real estate companies sent multiple unwanted text messages via an “automated telephone dialing system,” which the plaintiffs claim violates the TCPA.

Florida Realtors has covered the Telephone Consumer Protection Act (TCPA) over the years, laying out the nuances of the law, including ways to ensure compliance. Remember: The TCPA extends not only to consumers but to anyone not on the exemption list (see below), including your fellow Realtors.

The TCPA prohibits sending text messages using auto dialers without consumer consent and the ability to opt out. For the purposes of sending telemarketing texts, signed consent is required. For non-telemarketing texts, like an appointment reminder, prior express consent is needed. It’s recommended that any brokerage utilizing this contact method use clearly stated consent forms and keep written records as to consent.

For example, if a consumer verbally agrees to allow you to send him non-telemarketing texts, it’s wise to follow up with an email reaffirming that consent.

In addition to consent, there must be a way for consumers to revoke consent by reasonable means. Most commonly, this occurs by allowing the consumer to respond to the text with the word “STOP” or “UNSUBSCRIBE.” Should a consumer choose to unsubscribe, their requests should be promptly addressed. That makes it important to have a system in place to honor those requests, as well as a record retention policy to show when it was honored after the request.

Federal law also covers robocalls and faxes.

The Do Not Call portion of the TCPA offers a safe harbor provision. To potentially be covered by the provision, a company needs to show it has written procedures regarding compliance with the do not call requirements, trains personnel in those procedures, monitors and enforces compliance with those procedures, maintains a company-specific list of telephone numbers that may not be called, has accessed the national do not call registry no more than 31 days before calling a consumer, and maintains records of this process and shows that any call made was the result of an error.

TCPA Do Not Call exemptions

  1. Business-to-business calls

  2. Calls involving an established prior business relationship within 18 months preceding a call

  3. Calls to consumers who have given written permission to call

  4. Informational calls

  5. Calls promoting a political party or candidate

  6. Non-profit organization solicitations for charitable contributions

Please take note: If you use or are considering lead-generation services, make sure the company you use follows the law.

Bottom line: Make sure your brokerage has internal policies and procedures specifically addressing the TCPA, that you offer training on how to comply with the TCPA and your office has a process in place for monitoring compliance. Otherwise, you could find yourself on the wrong end of a lawsuit.

For additional information regarding the TCPA, visit NAR’s website. Florida Realtors also covered TCPA issues during its 2018 convention at the Legal and Professional Standards Update. Videos of that presentation and more are available on Florida Realtors’ website.

Meredith Caruso is Associate General Counsel for Florida Realtors

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