Understanding TCPA for Real Estate Agents
Disclaimers:
(1) on January 24th 2025 the US Government decided to grant a stay to the planned TCPA changes (slated for January 27th 2025). This postpones these changes for up to a year.
(2) this article was not written by attorneys – the content below is the result of discussions with industry experts and in depth research from legal firms that specialize in privacy law. It’s always advisable to check with your attorney on these matters.
The updated Telephone Consumer Protection Act (TCPA) was intended to go into effect on January 27th 2025 (stay tuned for if/when the new date gets announced). It includes changes that govern how businesses can engage with consumers via phone calls, text messages, and prerecorded or automated communications.
For real estate professionals, understanding changes to the TCPA is vital to ensuring outreach is compliant. Non-compliance can result in steep penalties ($500 or more per violation), carries the risk of costly class-action lawsuits, and reputational damage.
Equally significant are the various Do Not Call (DNC) Registries, which further regulates telemarketing efforts by restricting contacts with consumers unless specific exceptions or prior written consent applies. This could mean changes in business practice for agents, real estate teams, and brokerages that rely on automated marketing.
Below we will break down the essentials of TCPA for real estate professionals by answering these questions:
- What is the TCPA and why is it being implemented?
- What are considered regulated technologies in the TCPA?
- What changes do agents and brokerages need to make to comply with TCPA?
- Open House TCPA Compliance for Real Estate Agents?
- More TCPA FAQs
What is the TCPA and why has it been updated?
The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to address the growing number of consumer complaints regarding intrusive telemarketing practices (at the time robo-dialers in call centers).
The TCPA mandated that businesses obtain a call recipient’s prior express written consent before placing auto-dialed calls or using pre-recorded/artificial voices to contact wireless numbers.
However, robocalls still make up the majority of consumer complaints to the Federal Communications Commission (FCC) and many consumers shared they never actually provided consent.
The FCC found that much of this confusion arises from “bulk” consent supposedly granted through lead generation websites. Consumers often click through dense language, inadvertently giving permission for hundreds or thousands of unrelated entities to contact them about a range of products or services.
In December 2023, the FCC addressed this issue by adopting “one-to-one consent” rules, closing the so-called “lead generator loophole.” Under these new regulations, which were originally planned to take effect on January 27, 2025, any business using “regulated technologies” in their outreach (see below) must be explicitly named in the consent language, and all calls must be “logically and topically” related to the original context in which consent was given. This reform ensures that consumers’ consent is truly specific to a single seller and relevant to their interaction, rather than serving as a blanket authorization for multiple unrelated companies to call.
Besides the changes to consent there are other key changes to the TCPA. With advancements in technology—such as automated dialing systems, multi-line dialers, and prerecorded voice messaging and artificial intelligence—marketers gained the ability to reach a large audience quickly, often at the expense of the consumer. As a result the TCPA’s regulated technologies have also been updated – note that the the government did postponed the effective date of these TCPA changes (originally slated for January 27, 2025).
As we’ll discuss below, these new rules are designed to tighten consent protocols, regulate automated communication, and enforce stricter penalties for violations.
While this article focuses on the TCPA, the law also enforces the National Do Not Call (DNC) Registry, providing an opt-out mechanism for individuals who prefer not to receive marketing calls. This dual-layered approach protects consumers from both unwanted telemarketing and misuse of their contact information.
For agents that are using software in their outreach and real estate nurturing campaigns, understanding these laws is key to avoiding penalties while building trust with potential clients.
What the TCPA considers “regulated technologies”
Under the TCPA, technologies capable of automating telemarketing communications are more closely regulated to protect consumers. Here’s a list of the most common regulated technologies as it relates to the updated TCPA:
- Power Dialers aka “automatic telephone dialing system” or ATDS – including:
- Predictive Dialers: Systems that automatically dial multiple phone numbers and connect live agents only once a call is answered.
- Preview Dialers: Dialers that offer some agent involvement, but still have the capacity to store and dial numbers automatically.
- Robocall/IVR, Ringless Voicemail, or AI Voice Systems: Platforms that can deliver pre-recorded or AI-generated voice messages without live agent intervention.
- Random/Sequential Number Generators: Any hardware or software that can generate phone numbers randomly or sequentially and call/text them automatically.
- Bulk SMS Marketing Platforms: Tools that can send high-volume text messages en masse, often triggered or scheduled automatically.
- SMS/Voice Drip Campaign Tools: Dialers or messaging software that automatically schedule and place follow-up calls or texts based on workflows.
- Click-to-Dial/Click-to-Text Tools (depending on functionality): Even if an agent clicks each number, the underlying system may still have the capacity to auto-dial.
Important to note when evaluating your tech stack for TCPA regulated technologies:
- There is room for interpretation. For background, when the TCPA was introduced in 1991 it had a limited scope to what dialing tools were considered “regulated” (aka “automatic telephone dialing system” or ATDS), but now the FCC seems to have expanded that scope to include dialer/sms technologies designed for automated or mass dialing/messaging.
- Its plausible that most power dialers would be included in the updated scope (and some legal firms agree) but there are different interpretations.
- Same goes for CRMs that have built in text/call features…especially when there’s a manual action involved in placing a call or sending a text.
- Manually making calls or sending texts from your smart phone is not considered using a regulated technology…but adhering to DNC is still required
- Email marketing is not regulated by the TCPA, but is separately regulated by CAN-SPAM
What changes are needed in my real estate business to comply with the new TCPA?
First off, if you’re not using any of the regulated technologies from the section above AND you are scrubbing against applicable DNC registries in your region before any cold phone/text outreach, you are already complying with the TCPA.
The content below is to explain changes required when one of the above regulated technologies is being used. If using one of these regulated technologies you’ll need to make sure you have Express Written Consent.
What is Express Written Consent and When Do You Need It?
Express written consent is a cornerstone of TCPA related to acquiring real estate leads that will be followed up with any of the above regulated technologies. It’s important to note that the “written” doesn’t mean consumers need to “write” anything. Digital consent counts but here are the key criteria based on the updated TCPA rules:
- Specific to your business:
- Each individual consumer must explicitly agree to be contacted by a specific business. This contrasts with one-to-many consent, where a consumer may have given broad permission to multiple businesses.
- The consent form must identify the specific service provider. For real estate, that’s ususallythe agent AND brokerage (typically the responsible party).
- It is not enough to have general consent given to a lead generator; consumers must explicitly agree to receive calls or texts from your specific entity.
- Describe the communication that is being consented to:
- nature of communication (ex: discuss interest in home purchase) that the consumer is agreeing to.
- the type of communication that will occur (ex: phone calls). If automated technologies such as automated texts, prerecorded messages, and AI-powered communication tools may be involved later, it’s best to disclose this so the consumer’s consent counts.
- Active Opt-In: Consumers must actively opt in to receive communications rather than having consent assumed or implied. They must take a specific action (such as checking a box, hitting “Accept” or “Yes”, or replying in the affirmative) to indicate their consent.
- Consent is not a condition: the consumer’s agreement is not a condition for purchasing real estate services or products.
- Documented and Verifiable: You must keep a record of when and how the consent was obtained, ensuring that it is documented and verifiable.
What about past clients and other prospects in your database where there’s an existing relationship?
Many of the consumers within a real estate agent’s database/CRM would qualify as having an established/existing business relationship (EBR) with the agent. The exact definition will vary by region but usually means the consumer has either been a past client or has inquired about services before.
First it’s important to note that the established business relationship is an exception to the Do Not Call (DNC) list and, to some degree, to the requirement for express written consent…but the exemption primarily applies to manual calls. The rules when using any of the regulated technologies above to communicate with consumers with established business relationships the best course is still to get express written consent.
TIP: Make getting express written consent part of your ongoing communications during the course of working with clients (showings, buyer/seller appointments, mid-transaction) so you don’t have to worry about it later when you want to re-market to them.
So remember, if you have an existing business relationship, you can make manual calls or texts even if the person is on the DNC list BUT having an existing business relationship doesn’t override the need for written consent when using automated tech. In either case, you must still honor opt-out requests.
In summary, while an established business relationship allows some flexibility with manual calls to those on the DNC, it does not exempt you from obtaining express written consent for using automated technologies. You must secure explicit, one-to-one consent to use autodialers, AI, prerecorded voicemails, and similar tools, regardless of an established business relationship. You also need to track whether your established business relationship window (90 days to 18 months depending on the relationship) is still valid, and ensure you have proper consent if you’re reaching out beyond those timeframes.
What other adjustments and considerations are there related to TCPA consent?
- Revocation: Consumers have the right to revoke their consent at any time, by text, email, or verbal request. These revocations must be honored within 10 business days.
- Re-Consenting is Important: Past clients should provide express written consent if you plan to use automated technology.
- Consent Must Be Given to the Brokerage: The brokerage is typically the responsible party. It’s advisable to get consent using the brokerage name, and include your name as the agent when appropriate.
- Verbal consent gets more complex: Verbal consent is not sufficient for automated calls, prerecorded messages, or AI-driven communication. Verbal consent may be acceptable for outreach under certain conditions (e.g., existing business relationships), but it is always best practice to document it in your CRM or notes.
In summary, express written consent under the TCPA requires a specific, documented, and verifiable agreement from each individual consumer to be contacted by your particular business using automated communication technologies. The consumer must actively opt-in, and they must be fully aware of who they are consenting to be contacted by, and that their consent is tied to a particular business.
By following these steps, real estate agents can adopt a proactive approach to TCPA compliance, reduce legal risks, and build trust with their prospects. Staying diligent with database hygiene not only protects your business but also sets the foundation for effective and lawful telemarketing campaigns.
Open House TCPA Compliance for Real Estate Agents
After all, we are an Open House app…
If you are a real estate agent or team and you use Open Houses as a prospecting method then this is for you.
NOTE: if you do not plan to use any regulated technology (e.g., automated dialers, mass text tools, or AI-generated calls) to follow up, then no changes to your usual Open House process is needed. We still recommend using our free Open House app though as it will save time and maximize prospecting results.
Now, if you do plan to use a regulated technology for Open House lead follow-up then you’ll want to make sure you’ve captured consent and it’s well documented.
That’s where Curb Hero can really help ensure TCPA compliance for Open House visitors.
With our digital sign-in, you can customize the disclaimer shown to prospects at the time they provide their phone number, clearly disclosing who you are as the contacting business, the nature of your follow-up (e.g., to gauge interest in the property), and your intended communication methods (e.g., text messages or phone calls).
You can update this disclaimer and add a privacy policy URL for further transparency in My Profile > Additional Options section (see our help article here). Because every visitor’s sign-in is recorded in your account with a timestamp AND can be synced to thousands of CRMs, you’ll have proof they received and acknowledged the disclaimer—critical for demonstrating TCPA compliance if questions ever arise.
For additional compliance we also have the ability to add disclosures (ex: OHNA-SI) to an Open House sign-in. This article goes further into that.
Other Frequently Asked Questions on TCPA
Federal DNC. This is maintained at the national level and it is a requirement to scrub numbers against it if you lack consent to call those numbers.
Internal DNC. This refers to Lofty’s DNC that will prohibit outgoing calls and texts from the Lofty platform to any number that is placed on it. This is maintained at the account level.
State DNCs. Many states have their own DNC lists that should be used to scrub numbers similar to the Federal DNC.
The TCPA does not regulate email communication (CAN-SPAM does). The new TCPA rules specifically address telephone-related activities, such as SMS text, phone calls, and automated voicemails, but not email.
Under the new TCPA rules, you must obtain explicit consent to contact any lead using automated technologies, regardless of when the lead was generated. This applies to your existing CRM database.
Note: If you have an existing business relationship you can make manual calls or texts even if the person is on the DNC list. However, you must still honor opt-out requests, and you cannot use automated technology under the EBR exception alone. If someone asks you not to call or text, you must honor this request.
So far there isn’t a defined expiration period (at a national level) for consent so it’s open to interpretation. Some in the industry recommend a six-month period for a consent opt-in period for automated phone communications…however others have suggested that consent exists until revocation. Also note that certain states may have defined an expiration on consent. Also remember the definitions may evolve over time so it’s good to consult an attorney especially if planning to do long term outreach using regulated technologies.
Yes the timeline depends on the nature of the business relationship:
– Inquiry About Products or Services: If a consumer has inquired about your products or services, you have a 90-day window of active EBR. During those 90 days, you can manually reach out without violating DNC rules. After that period, you must adhere to all rules, especially the need for express written consent to use automated technology.
– Contract or Payment: If a consumer has a contract or has made a payment for your services, you have an 18-month window of active EBR. After those 18 months, you must have express written consent to use regulated technology.
Yes. The brokerage is typically the “responsible party” when it comes to TCPA compliance. So if a lead was consented to your brokerage, but you move to another brokerage, you will have to re-consent your leads, as the consent was tied to a specific brokerage.
Violations of the DNC list carry fines of $500-$1,500 per call. These penalties apply to each call made to a number on the DNC list without the proper consent or established business relationship. In addition to DNC violations, there are penalties for violating TCPA rules which range from $500 to $2,000 per call, per number, per text
The new TCPA regulations aim to eliminate mass or vague consents and instead require explicit, one-to-one consent whenever automated communication tools are used. Before lead generation companies often used blanket permissions or purchased leads that included a general consent. A consumer might fill out one form and end up being contacted by numerous providers. This new regulation is designed to reduce those unwanted calls or texts to consumers. Under the new rules, consumers must actively opt in, rather than having consent assumed or implied. Consent must be documented, verifiable AND tied to a particular service provider or brokerage, not a generic “anyone can contact me” scenario.
The Do-Not-Call Registry restrictions clearly apply to text messages as well as phone calls. If you are sending text messages (even if you are not using one of the types of regulated technologies outlined in the TCPA) you must ensure the number is not on the National DNC list. If the consumer is on the DNC then you must have prior written consent from them or a prior business relationship with them
Does TCPA apply to informational text messages that are based on a consumer request?
Transactional texts which don’t contain marketing or promotional content, are generally exempt from the compliance rules that govern telemarketing under the TCPA. Because they simply fulfill a consumer’s request, they are treated similarly to how transactional emails are handled under spam regulations. In other words, if the message is truly informational and not designed to sell or promote a product or service, it does not fall under the stricter TCPA provisions that regulate promotional or marketing messages.
In closing, complying with the TCPA goes far beyond simply avoiding government fines—it is about respecting consumer preferences and building trust in your business. By obtaining clear, documented consent for automated communications, honoring revocations promptly, and keeping solid records you’ll insure your business is on the right side of this new regulation.
But also remember regulations evolve so stay informed and be proactive to make sure your business is protected.
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