TCPA Compliance

https://dialsafe.exprealty.com/

Several states have specific Do Not Call (DNC) regulations that restrict telemarketing calls on certain holidays. Here's an overview:

🎉 State DNC Holidays

Texas does not have holiday DNC rules, but these states do:

1. Alabama

2. Louisiana

3. Mississippi

4. Nebraska

5. Pennsylvania

6. Rhode Island

7. Utah

Holidays Across Multiple States

1. New Year's Day (All listed states)

2. Independence Day (All listed states)

3. Labor Day (All listed states)

4. Thanksgiving Day (All listed states)

5. Christmas Day (All listed states)

6. Martin Luther King Jr. Day (Alabama, Mississippi, Nebraska, Pennsylvania, Utah)

7. Veterans Day (Mississippi, Nebraska, Pennsylvania, Rhode Island, Utah)

8. Memorial Day (Alabama, Mississippi, Nebraska, Pennsylvania, Rhode Island, Utah)

9. Columbus Day (Alabama, Nebraska, Pennsylvania, Rhode Island, Utah)

🚨 State of Emergency

During a state of emergency, certain states impose additional restrictions on telemarketing activities to protect residents from undue stress and to ensure that communication channels remain open for critical information.

State-Specific Restrictions:

• Louisiana: Telemarketing calls are prohibited in areas under a declared state of emergency.
  ClickPoint Software Blog

• New York: Similar to Louisiana, telemarketing calls are restricted in regions where a state of emergency has been declared.
  ClickPoint Software Blog

Best Practices for Compliance:

1. Stay Informed: Regularly monitor state and local government announcements for declarations of emergency in your target areas.

2. Adjust Campaigns Accordingly: If an area you plan to contact is under a state of emergency, suspend telemarketing activities until the declaration is lifted.

3. Consult Legal Counsel: For states not explicitly mentioned, seek legal advice to understand any implicit restrictions during emergencies.

By adhering to these guidelines, you can ensure compliance with state regulations and maintain ethical communication practices during sensitive times.

🤠 But I’m in Texas 

This matters to agents in Texas because many of your leads may be out-of-state buyers planning to relocate to Texas. Here’s why you need to pay close attention:

1. You’re Bound by the Rules of the Recipient’s State

Even though you’re based in Texas, the laws of the recipient's state govern telemarketing compliance. If the state where the lead resides has stricter Do Not Call (DNC) or state of emergency rules, you must adhere to those regulations.

2. Protect Your Reputation

Violating telemarketing laws in another state can damage your credibility and create mistrust. Out-of-state clients may feel frustrated or harassed if you reach out during prohibited times, such as holidays or emergencies.

3. Financial and Legal Risks

Non-compliance with telemarketing laws, including during a state of emergency, can lead to:

• Hefty fines: $500–$1,500 per violation under TCPA, multiplied by the number of calls.

• Class-action lawsuits: If you violate laws impacting a large group of consumers.

4. Stay Competitive and Ethical

Out-of-state buyers often work with multiple agents. By following strict compliance rules, you set yourself apart as a trustworthy and professional option for their relocation needs.

Example Scenarios

1. Compliant: Calling a lead from Louisiana and confirming their area is not under a state of emergency before initiating contact.

Non-Compliant: Cold-calling a lead in New York during a hurricane-related state of emergency, violating their local restrictions. 

Key Rule: (CAN-SPAM Act)

You cannot email purchased leads that have not been given express written permission, even if the seller of the list claims the leads are "opted-in." Under the CAN-SPAM Act, emailing someone requires at least implied consent (e.g., they requested information from you or had a prior interaction). Purchased leads typically don’t meet this standard because the recipients didn’t directly interact with you or agree to receive your communications.

What you should do instead:

• Verify that any purchased leads explicitly opted in to receive emails from your organization.

• Include a clear unsubscribe option in every email to comply with the law.

• Build your own opt-in email list by capturing leads directly through your website, events, or social media campaigns.

Emails must include:

• Clear sender identity (e.g., name and business).

• A visible unsubscribe link for recipients.

• Honest and accurate subject lines (no misleading titles).

How to Stay Compliant

• Opt-out requests must be honored within 10 business days

• Use email marketing platforms that automatically include unsubscribe links.

• Review and clean email lists regularly.

• Avoid deceptive marketing tactics like bait-and-switch subject lines.

Examples

Non-compliant: 

• Sending promotional emails with no way to opt-out. Failing to include an unsubscribe link in your email.

• Sending a promotional email to a list purchased from a third party, where consent wasn’t explicitly given TO YOU.

• Using a deceptive subject line like “Your Home is Guaranteed to Sell in 24 Hours!” to increase open rates.

• Emailing a lead you met at a community event without their permission, assuming the connection gives you the green light.

• Sending a market update email to your entire database without an unsubscribe option.

• Using a misleading subject line like “Limited-Time Cash Offer for Your Home” to trick sellers into opening your email.

Compliant: 

• Following up on an inquiry email with clear sender information and an opt-out link.

• Sending a follow-up email to a lead who filled out your online contact form and agreed to receive communications.

• Including an unsubscribe link in every email, allowing recipients to opt out easily.

• Using a clear subject line like “Follow-Up on Your Inquiry About Homes in Dallas” instead of clickbait.

• Sending a follow-up email to a seller who completed your website’s “What’s My Home Worth?” form and checked the box to receive communication.

• Sending an email with a subject line like “Your Free Home Value Report Is Ready” that reflects the content inside the email.

Financial Penalties

Violating the CAN-SPAM Act can result in substantial financial penalties, calculated on a per-email basis. Here’s how it breaks down:

1. Per Violation Penalty

• Fines of up to $50,120 per violation: Each non-compliant email is treated as a separate violation, meaning penalties can multiply quickly if a large email campaign fails to comply.

2. Factors That Impact Fines

The exact fine depends on:

• The number of emails sent: Each email counts as an individual violation.

• The severity of the violation: Repeated or intentional non-compliance could lead to higher penalties.

• Failure to address opt-out requests: Ignoring unsubscribe requests increases the risk of significant fines.

3. Examples of How Penalties Add Up

• Small Campaign: Sending 500 non-compliant emails could result in fines of up to $25,060,000 (500 x $50,120).

• Neglected Opt-Outs: If you send 100 emails to individuals who previously unsubscribed, penalties could reach $5,012,000.

4. Additional Consequences

• Legal Liability: Beyond monetary fines, individuals and companies can face lawsuits from the Federal Trade Commission (FTC) or state attorneys general.

• Reputation Damage: Being flagged as a spammer can harm your credibility and reduce the effectiveness of future email campaigns.

5. Compliance is Cheaper than Fines

Ensuring compliance—like including opt-out mechanisms, honoring unsubscribes promptly, and avoiding deceptive subject lines—costs far less than the potential fines.

Key Rule: TCPA (Telephone Consumer Protection Act)

You can call someone who has not explicitly given permission only if they are NOT on the National Do Not Call Registry and you comply with the following conditions:

When You Can Call Without Explicit Permission:

1. Not on the Do Not Call Registry: The number must not be listed on the registry unless you have prior consent.

2. Established Business Relationship (EBR): If you have an ongoing relationship (e.g., they were a recent client or inquired about your services within the last 18 months), you may call.

3. Local Time Restrictions: Calls must be made between 8 AM and 9 PM in the recipient's time zone.

When You Cannot Call Without Permission:

1. If the number is on the Do Not Call Registry and they haven’t provided prior express permission.

2. If the lead was generated through a purchased list without verifiable consent for calls.

Best Practices:

• Always check the Do Not Call Registry before calling.

• If you’re calling FSBO leads or online inquiries, verify that their numbers aren’t on the registry.

• Document all consent and maintain records to protect against potential violations.

Calling someone without their express permission can result in penalties under the TCPA (Telephone Consumer Protection Act) if you violate these rules.

• Prohibits calling individuals on the National Do Not Call Registry without prior consent.

• Restricts calls between 8 AM and 9 PM in the recipient’s time zone.

• Requires recorded consent for calls using auto-dialers or prerecorded messages.

How to Stay Compliant

• Always check the Do Not Call Registry before calling.

• Avoid calling outside permissible hours.

• If purchasing leads, confirm that the provider ensures compliance with TCPA and state laws.

Examples

• Non-compliant 

  • Calling someone on the Do Not Call Registry without prior written consent.

  • Calling a FSBO homeowner from a Craigslist ad without checking the Do Not Call Registry.

  • Calling a lead at 9:30 PM to follow up on their home-buying inquiry. [violates time restrictions]

  • Dialing numbers from a purchased lead list without confirming whether those leads provided consent to be contacted.

  • Calling FSBO sellers without first checking if they are on the Do Not Call list.
    
    

• Compliant: 

  • Checking the Do Not Call Registry before dialing a FSBO lead and finding they’re not registered.

  • Checking the Do Not Call Registry before calling a FSBO homeowner from a Craigslist ad and confirming they’re not on the list.

  • Calling a homeowner at 6:00 PM to discuss a CMA request they submitted on your website.

  • Following up with a lead from an open house sign-in sheet who gave written consent for calls during the event.

  • Calling a lead between 9:00 AM and 8:00 PM local time and introducing yourself with your full name and company.

  • Calling a lead who filled out a form on your website and provided explicit written consent for calls.

  • Calling a lead who has explicitly given written consent through a CRM or online inquiry form.

Financial Penalties

The financial penalties for breaking TCPA (Telephone Consumer Protection Act) rules can be severe, with fines imposed on a per-violation basis. Here's a breakdown:

1. Per Violation Penalties

• Standard Violations:
  $500 per violation.

• Willful or Knowing Violations:
  Up to $1,500 per violation. This applies if the violation is found to be intentional or repeated despite warnings.

2. Examples of How Penalties Add Up

• Mass Text or Call Campaigns: If you send 1,000 unsolicited texts without consent, the potential fine could be $500,000 (1,000 x $500).

• Auto-Dialed or Prerecorded Calls: If a single auto-dialer campaign targets 200 people who didn’t consent, fines could range from $100,000 to $300,000 depending on whether the violations were willful.

3. Class-Action Lawsuits

TCPA violations often lead to class-action lawsuits, especially for large-scale campaigns. Settlements for these lawsuits can reach millions of dollars, depending on the scale of the violations and the number of affected individuals.

Even a small mistake, like calling 50 people without checking the Do Not Call Registry, could cost you $25,000 or more. Staying compliant is far less expensive than risking these penalties. 

Starting January 27, 2025, the Federal Communications Commission (FCC) is implementing significant changes to the Telephone Consumer Protection Act (TCPA) that will impact how businesses, including real estate agents, communicate with potential clients.

What's Changing:

• One-to-One Consent Requirement: Businesses must obtain prior express written consent from consumers for each specific company intending to contact them. This means a consumer's consent to receive communications from one business cannot be transferred or assumed for another.

• Stricter Consent Documentation: The definition of express written consent is being tightened. Consent must clearly authorize a single, identified seller to deliver telemarketing messages using automated systems or prerecorded voices.

How to Stay Compliant:

1. Update Consent Forms: Ensure all lead capture forms explicitly state the specific business that will contact the consumer. Each form should include a clear authorization for that particular company.

2. Maintain Detailed Records: Keep comprehensive records of all consents obtained, including the date, method, and specific language used. This documentation is crucial in case of disputes or audits.

3. Review Third-Party Leads: If purchasing leads, verify that each lead has provided explicit consent to be contacted by your specific business. Generic consents are no longer sufficient.

Examples:

• Non-Compliant:

  • Scenario: A real estate agent purchases a list of potential homebuyers from a third-party vendor. The leads have consented to receive communications from "partner companies," but not specifically from the agent's business.

    • Issue: The consent is not specific to the agent's company, violating the one-to-one consent requirement.

  • Scenario: An agent uses a general consent form at an open house, stating that attendees agree to receive communications from "local real estate professionals."

    • Issue: The consent is not specific to the agent's business, making any follow-up communications non-compliant.
      
      

• Compliant:

• Scenario: At an open house, an agent provides a sign-in sheet that includes a statement: "I consent to receive communications from [Agent's Name] at [Agency Name] regarding real estate services."

  • Compliance: This specific consent allows the agent to contact the attendee legally.

• Scenario: A potential client fills out a form on the agent's website, which includes a checkbox stating: "I agree to receive calls and texts from [Agent's Name] at [Agency Name] about real estate opportunities."

  • Compliance: The explicit consent permits the agent to reach out using the specified communication methods.

Non-Compliant Examples

• Using an old open house sign-in sheet to text or call leads without verifying if they consented to SMS or phone contact.

• Calling FSBO leads from a purchased list in January 2025 without confirming compliance with the updated consent requirements.

• Continuing to use a CRM or dialer system that doesn’t track written consent or manage opt-outs, resulting in potential violations.

Compliant Examples

• Updating your online lead capture forms to include a checkbox for written consent specific to calls and texts, such as “I agree to receive calls and texts about real estate services.”

• Tagging leads in your CRM with consent status (e.g., “Call & Text Approved”) to ensure only compliant communication.

• Providing training for your agents on the new TCPA rule and how to verify consent in your systems.

HIGHER PENALTIES AND ENFORCEMENT

Starting January 27, 2025, the Federal Communications Commission (FCC) is implementing stricter consent requirements under the Telephone Consumer Protection Act (TCPA). While the specific penalty amounts remain consistent—$500 per violation, increasing to $1,500 for willful or knowing violations—the enforcement of these penalties is expected to become more stringent. 

This means that violations, especially those involving third-party lead sources or lacking proper written consent, will face greater scrutiny and a higher likelihood of incurring these fines. 

Therefore, it's crucial to ensure all communications comply with the updated consent requirements to avoid these substantial penalties.

On occasion, you will call someone on the DNC list. Here’s how to handle it:

“Hey, I’m on the Do Not Call list!”

With a very sincere tone of voice, reply……..

“Forgive me. That was not my intention. I am really sorry. Please allow me to put you on our internal call list. These numbers get refreshed every 30 days and something must’ve happened. I’m incredibly sorry!”

Did You Know? 

know that text messages and phone calls are treated the same under TCPA regulations? This means that all requirements applicable to cold calls, general contact, and unsolicited communications also apply to text messaging. Please keep this in mind when communicating with clients and potential customers.

The Telephone Consumer Protection Act (TCPA) establishes strict regulations for text messaging, particularly for businesses and organizations. Here’s a summary of the key rules:

Key Rule: TCPA (Telephone Consumer Protection Act)

Prior Express Consent is Required

• Transactional or Informational Texts:
  Consent can be implied if the recipient has an established relationship with your business (e.g., they signed up for updates or requested information).

• Promotional or Marketing Texts:
  Requires prior express written consent, which must:

  • Be clearly documented.

  • Specify that the recipient agrees to receive texts.

  • Identify the sender's name and purpose of the messages.

No Automated Texting Without Consent

• Autodialer Restrictions:
  Texts sent using an automated system or pre-recorded messages require the recipient’s written consent.

• Manually Dialed Texts:
  Texts sent manually may not require written consent, but they still must comply with opt-out and other TCPA rules.

Opt-Out Mechanism Must Be Provided

• Every text must include an opt-out option, such as:

  • “Reply STOP to unsubscribe.”

• Opt-out requests must be processed immediately, and businesses must maintain a Do Not Text list to ensure compliance.

Time-of-Day Restrictions

• Text messages should only be sent between 8 AM and 9 PM in the recipient’s time zone.

How to Stay Compliant

• Always collect written consent for texting leads (e.g., through an online form or text opt-in).

• Keep records of all consent forms.

• Avoid sending mass texts without ensuring compliance with opt-out requests.

• Use texting platforms with built-in compliance tools (e.g., opt-out management).

• Regularly audit your texting practices to stay aligned with TCPA rules.

• Regularly audit third-party texting services to ensure adherence to TCPA rules.

Penalties for Violations

• Fines of $500 per violation and up to $1,500 per violation for willful or knowing violations.

• Each text is treated as a separate violation.

Examples

Non-Compliant

• Sending unsolicited texts to FSBO leads from Zillow without obtaining written consent.

• Sending mass texts to your past clients about a new listing without ensuring opt-in for SMS communication.

• Sending bulk texts to FSBO leads without explicit written consent.

• Sending an unsolicited text message to a lead without prior consent, even if it’s a single text.

• Failing to include a clear opt-out option in your texts to leads, such as “Reply STOP to unsubscribe.”

• Texting FSBO leads from Zillow without obtaining written consent.

• Sending automated texts to a purchased lead list without confirming consent.

• Failing to honor an opt-out request and continuing to send messages.

Compliant

• Sending a follow-up text to an open house attendee who opted in on the sign-in sheet.

• Including a clear opt-out option, such as “Reply STOP to unsubscribe” in every text message.

• Following up with an online inquiry who opted into SMS updates.

• Texting a lead who checked a consent box on your website agreeing to receive text updates.

• Sending a text to a buyer who opted into SMS updates after attending your open house and signed a guest form.

• Texting a FSBO lead only after obtaining explicit written consent through your website or another opt-in method.

• Including “Reply STOP to unsubscribe” in every text you send to a lead about home listings or market updates.

Here’s how to stay compliant across all prospecting activities:

1. Use pre-approved scripts for calls, texts, and emails.

2. Maintain a centralized opt-out list across all communication channels.

3. Regularly review CRM tools to ensure they align with compliance requirements.

4. Perform monthly compliance audits to catch and correct issues early.

5. Train on changes to the law as they happen.

Compliance Checklist

Use this checklist to ensure compliance with all prospecting regulations:

• Verify lead source compliance (Do Not Call, opt-ins, etc.) | General Compliance |

• Check the National Do Not Call Registry before cold-calling | Cold-Calling|

• Ensure consent is obtained before sending texts  | Texting |

• Use clear sender identity in emails | Emailing |

• Include opt-out/unsubscribe options in texts and emails | Emailing |

• Avoid misleading or deceptive subject lines in emails    | Emailing |

• Maintain an updated Do Not Contact list | General Compliance |

• Review scripts for calls, texts, and emails for compliance | General Compliance |

• Document written consent for texting or calling |Texting & Cold-Calling |

• Perform monthly compliance audits on prospecting activities | General Compliance |

• Train on TCPA, CAN-SPAM, and texting rules | Training |

• Prepare CRM and auto-dialers for January 2025 TCPA updates | Preparation |

• eXp Agent Compliance “Did You Know?” Series

• Check out this video from eXp about Telephone Consumer Protection Act compliance: https://www.youtube.com/watch?v=TqZb0-m6IdE

• Here are additional resources from NAR: 

  • https://www.nar.realtor/telemarketing-cold-calling

  • Window to the Law: Updated Guidance for TCPA Compliance

  • https://www.nar.realtor/videos/window-to-the-law/updated-guidance-tcpa-compliance 

• NAR TCPA Rules

• FTC - Q&As for Telemarketers

• FCC - TCPA Law

• TCPA Regulations

• TCPA Resource Guide

eXp Internal Do Not Call (DNC) List Implementation

Exciting compliance news! We've established our official Internal Do Not Call (DNC) list, a major step towards complying with DNC and TCPA regulations. As a responsible agent, you already understand the importance of checking your contact list against the National Do Not Call list and its state equivalents. But sometimes leads specifically opt out of communication from eXp and its agents, so adding them to our internal DNC list keeps us informed.

This is just the beginning of a comprehensive strategy, with more robust tools coming soon. Your active participation is crucial for eXp agents' protection and compliance. When you identify a DNC number and submit it, you contribute to spreading vital information that benefits everyone, safeguarding both yourself and fellow agents. Together, we'll continue to grow this list and enhance our protection.

Here are the key details you need to know:

1️⃣ Access the eXp DNC List Form:

To facilitate the process, we have set up a form where you can submit numbers to be added to our DNC list. Please use the following link to access the form: eXp DNC List. Once you submit a number, you will receive a confirmation email containing a link to the DNC list spreadsheet for your reference.

2️⃣ Visibility and Download:

The DNC list spreadsheet is available right now, allowing anyone with the link to view and download it. Feel free to review the list to ensure compliance with DNC regulations. Here's the link to the spreadsheet: DNC List Spreadsheet.

3️⃣ Record Keeping and Management:

To ensure proper record-keeping, all form submissions will generate a ticket that will be regularly reviewed and updated to the DNC list, making sure it remains accurate and up to date. Additionally, our team will integrate new submissions into Chime and kvCORE.

4️⃣ Stay in the Loop:

To ensure you stay updated, eXp encourages you to check back at least once a week for any DNC list updates. Also, don't forget to stay tuned to this group, eXp Agent Compliance, for further announcements regarding eXp's Internal Do Not Call list. We are actively collaborating with teams throughout the company to bring you a comprehensive toolkit that will elevate your business development and protect its integrity.

eXp encourages you to test out the new DNC list form and submit any numbers that need to be included. Your participation and adherence to DNC regulations play a crucial role in ensuring compliance, protecting our clients, and protecting your fellow agents.

Reach out to our team by emailing compliance@exprealty.net if you have any questions.

General Rules and Compliance Changes

• What are the key changes to the TCPA rules effective January 27, 2025? One-to-one express written consent is required for all telemarketing communications, including texts, ringless voicemails, and auto-dialed calls. Generic consent forms or broad permissions are no longer valid.

• What does "one-to-one consent" mean? Consumers must explicitly check a box or click a button to consent to being contacted. Consent must be specific to the individual or entity contacting them.

• When do the new TCPA rules go into effect? The rules become effective on January 27, 2025.

• How long does consent last? Consent typically expires after six months for leads and 18 months for past clients unless renewed through re-engagement.

• What are the penalties for non-compliance? Fines range from $500 to $2,000 per violation, with potential for class-action lawsuits if violations are widespread.

• Who enforces these rules? The FCC is the primary enforcer, but attorneys actively pursue violations, creating significant liability risks.

Leads and Database Management

• What happens to leads in my current CRM database? Existing leads must be re-consented to comply with the new rules if you plan to use regulated technology to contact them.

• Can I still use third-party leads without written consent? You can manually call or email these leads before the rules take effect. After January 27, 2025, explicit written consent is required for further communication using regulated technology.

• What happens to FSBO and expired leads? You can manually call them if they’re not on the Do Not Call (DNC) list. Automated calls, texts, or voicemails require prior express written consent.

• What should I do with expired or unengaged leads in my database? Audit your database, prioritize re-engagement for high-value leads, and remove leads without proper consent by January 27.

• Can I mass text or call leads in my database? No, mass texting or calling without explicit written consent is prohibited. Manual one-to-one communication is still allowed.

• What happens if I change brokerages? Consent is tied to the brokerage listed in the original form. Leads generated under a previous brokerage may not remain compliant.

Contact Methods

• Can I manually call leads without consent? Yes, manual one-to-one calls are allowed as long as the lead isn’t on the DNC list.

• Can I text or email past clients and sphere?

  • Texting: Only if you have documented written consent.

  • Emailing: Permissible under the CAN-SPAM Act but must include an opt-out option.

• Can I still use automated texting platforms (e.g., smart plans)? Only if the lead has explicitly consented to being contacted using regulated technology.

• Are voicemail drops or ringless voicemails allowed? No, these are considered regulated technology and require written consent.

• What about incoming referral leads or people I meet at open houses? Written consent is required to contact them using regulated technology, even for referrals or in-person connections.

Lead Generation and Consent Forms

• What kind of consent forms do I need for my website? Your website must include clear disclosures with blank checkboxes for consumers to manually opt in for contact.

• Can I use a "select all" option on consent forms? No, consent must be given individually for each listed entity.

• How do I ensure compliance when buying leads? Demand documented proof of consent from lead providers. Without this documentation, leads cannot be contacted using regulated technology.

• What are the rules for contacting leads generated by Facebook ads or other campaigns? Leads are compliant if the form specifies your business, the communication methods, and the consumer explicitly consents.

Special Scenarios

• Does this impact referrals or people I meet in person? Yes, written consent is technically required for all leads, including those from referrals or personal meetings.

• Can I text leads who engage with me on social media? No, engagement on social media does not count as consent. Written consent through a compliant form is required.

• What should I do if I’m unsure about a lead’s compliance? Err on the side of caution. Avoid using regulated technology and manually contact the lead to verify and document consent.

• Are there exceptions for emergencies? No, the rules apply universally, with no exceptions for emergencies.

Practical Tips for Compliance

• How can I re-engage leads to obtain consent? Send value-driven messages (e.g., market insights or updates) asking leads to opt-in using a compliant consent form.

• How should I document consent? Use your CRM to track consent with timestamps and detailed records of how and when it was obtained.

• Are there tools to help audit my database? Platforms like RedX and LandVoice can help scrub DNC numbers and segment contacts by compliance status.

• How do I ensure compliance with referral services like Zillow or OpCity? Confirm the service provides proper consent documentation naming your business as the contact entity.

• Can I use auto-dialers or multi-line dialers? No, these are considered regulated technology and cannot be used without express consent.