Updates to TCPA compliance rules are set to take effect as of January 27, 2025, and it’s important for real estate professionals to take a moment to understand these changes and evaluate their potential impact on business operations. To aide in this we’ve put together an FAQ style article with our interpretation of the new rules, how best to navigate them, and what matters most for real estate agents, teams, and brokers.
PLEASE NOTE: The following article contains opinions and interpretations based on our own in-house legal counsel, and consultations with leading TCPA lawyers, however it should not be considered legal advice. If you have any concerns about compliance, we strongly recommend you seek your own legal counsel.
The Telephone Consumer Protection Act (TCPA) was enacted by Congress in 1991 to address the growing issue of unwanted telemarketing calls and to protect consumer privacy. Initially, the TCPA imposed restrictions on telemarketing calls, the usage of certain automatic dialing systems, and prerecorded voice messages. These measures were designed to limit the volume of unsolicited communications that consumers were receiving.
In 2003, the Federal Communications Commission (FCC) established a national Do-Not-Call registry to provide consumers with a way to opt out of telemarketing communications. This registry allowed individuals to register their telephone numbers, effectively blocking unsolicited calls from telemarketers. Additionally, rules were implemented requiring telemarketers to maintain do-not-call lists specific to their companies, further empowering consumers to limit unwanted calls.
Over time, the TCPA has evolved to address new challenges. For example, marketing text messages are now expressly covered by the National Do-Not-Call Registry, extending existing telemarketing protections to SMS communications. These continuous updates underscore the TCPA’s commitment to adapting to technological advancements and maintaining consumer privacy.
The FCC’s one-to-one ruling is a new federal regulation that alters the TCPA’s express written consent definition in a manner that requires consumers to select each “seller”–that is the ultimate good or service provider–the consumer chooses to receive calls from individually. This change means that each identified seller must obtain individual consent from consumers, rather than relying on broad, blanket consents.
Under the TCPA express written consent is required for any call (or text) that is made using “regulated technology”, which may include auto-dialers (ATDS), prerecorded or artificial voice calls, AI voice calls, and any form of outbound IVR or voicemail technology (including ringless) using prerecorded or artificial voice messages.
As of January 27, businesses (including real estate professionals) will need to obtain express written consent from each lead (consumer/person) before calling or texting them using “regulated technology”.
As noted above, “regulated technology” may include certain auto-dialers (ATDS), prerecorded or artificial voice calls, AI voice calls, and any form of outbound IVR or voicemail technology (including ringless) using prerecorded or artificial voice messages. However, as technology evolves this definition may change over time. There is also some debate over what may qualify as an ATDS. Our current understanding is that an ATDS may be defined as “a system that randomly or sequentially generates telephone numbers”.
Most likely, yes. Provided you are not using “regulated technology” to do so, most common real estate marketing actions will be unaffected. For example, any of the following would still fall within compliance standards so long as the lead is not on a DNC list:
-Call the lead from your cell phone or office
-Text the lead from your cell phone
-Call the lead from your CRM, including click-to-call
-Text the lead from your CRM
-Send an automated text to a new lead who registers on your website
-Send a text to a lead as part of an automated follow-up program (i.e. Lofty smart plan)
-Any calls placed using ATDS technology (see definition in previous sections)
-Any artificial voice calls, i.e. where an AI generated voice is being used
-Any pre-recorded voicemail technology including ringless and voicemail drop solutions regardless of whether the voice mail message is agent or AI generated
Any real estate agent, team, or brokerage using regulated technology for marketing purposes that does not meet the new FCC & TCPA compliance standard could be subject to fines that range from $500 to $1,500 per offense.
The damages are NOT limited to the call made to a single consumer and might include EVERY CALL made by a caller that violates the rule in a single case. Depending on volumes, therefore, some cases may seek hundreds of thousands or even millions of dollars in damages.
Action can be brought by any consumer that received even one violative call or text.
- Obtain 1-to-1 express written consent any time you capture new leads. Even if you are not currently using “regulated technology” in your operations, you may want to in the future, and/or the definition of regulated technology may change.
- Make sure your website forms have been updated to include an E-Signature Disclosure, agreement to your Terms of Service and Privacy Policy, and express consent to be contacted by phone call or text message.
- Evaluate your marketing tech stack and identify any components that may be considered “regulated technology”.
- Reach out to your technology vendors for specific information about their solutions, and ask what updates if any they have made to support you in operating within the new compliance standards.
- Make sure you are maintaining your own DNC and op-out lists within those systems.
- If you plan to use “regulated technology” for marketing and communications purposes, you should consider the following –
- Ensure you have a method of obtaining and storing express written 1-to-1 consent for any new lead that enters your database. This includes all those you capture from web forms or that you’ve uploaded manually from offline sources.
- Ensure you have a method/process for obtaining and storing consent from all existing leads in your database before calling or texting them.
- When purchasing leads through 3rd party sources, ensure you have a method for verifying with the provider that consent was obtained for your company specifically to call the leads, and a method for transferring that proof of consent, to store in your own database along with each record.
- Consent can’t be transferred from one company to another.
- The new rules will apply retroactively, so calling or texting any existing leads using regulated technology (i.e. that were acquired before Jan 27, 2025) may be in violation of TCPA if you are unable to prove express written consent.
Lofty is committed to providing technology solutions that meet the highest standards of data privacy, security, and legal compliance. To assist our customers in continuing to operate in compliance with the TCPA we have made updates to the following areas within the Lofty platform:
This update is designed to give customers greater visibility of who they may contact, and specifically what level of permission (consent status) has been obtained. This is particularly important when considering the use of “regulated technology” as a method of contact. All leads will now show one of the following consent statuses:
- “System Recorded” - Lead captured through Lofty Platform after 1/27/25, highest level of consent to contact, includes digital certificate, and can be contacted using regulated technology
- “User Recorded” – Lofty customer has determined that the lead provided consent
- “Business Relationship” – You previously did business with this person, or they inquired about your business within the last 18 months
- “Unknown” – This is now the default consent status for all leads until it becomes known
- Internal DNC” – Lead opted out of communications through the Lofty platform
This update is designed to help customers identify components within the system that may be considered regulated technology and provide some guidance on compliant use of those components. Lofty has identified 1 x feature within the platform and 1 x 3rd party integration that may be considered regulated technology under the new TCPA laws.
- Lofty Outbound Call Voice Messages (pre-recorded messages you can leave as voicemails when someone doesn’t answer your call)
- Slybroadcast Integration (pre-recorded ringless voicemail)
In both cases customers will need to establish new consent settings, and until they do certain buttons and actions may be greyed out.
This update will provide customers with a prebuilt email template that can be sent individually, or as a mass action to request that leads resubmit their consent to contact. Leads will be prompted to complete their profile, including questions and check boxes giving their consent. Once submitted the consent status for these leads will change to show “System Recorded” – the highest level of permission to contact.
After 1/27/25 every new lead that is created or captured in the Lofty Platform will include a digital record of consent. This record can be easily exported as a PDF, providing a layer of proof if needed when using regulated technology, and most importantly giving our customers peace of mind.
By default, all lead capture forms on Lofty customer websites will be updated to include compliance best practice copy and check boxes, along with the addition of an E-Signature Disclosure
This module will be updated so that all leads brought into the system via third party integrations will have a default consent status of “Unknown”. Customers will be able to adjust this status for each integration based on their understanding of each source and provider.
PLEASE NOTE: This list is simply representative of product updates we plan to release for customers by 1/27/25. As compliance requirements change, we will continue to update the Lofty platform, along with adding new value-plus features that are designed to best support our customers and maximize their success.