Leads and the Laws
Published on December 9, 2024 | 7 Minute read
PrimeStreet
Legal changes this year aren’t just impacting the way agents handle commissions. Some new rulings could have a significant impact on lead generation in the real estate space.
The Federal Communications Commission (FCC) recently adopted new rules for anyone generating, buying, or calling on leads generated via common Internet forms. These rules put in place what is known as 1:1 consent- with the intention of ensuring that consumers know and acknowledge who will be calling them and what they will be calling about when they fill out a form inquiring about a listing or real estate services.
These new rules go into effect January 27, 2025, but will impact leads you are getting right now. Any lead you’re getting now has to be compliant with the 1:1 consent rules to be called after January 27.
These are major revisions to what is known as the TCPA laws- Telephone Consumer Protection Act.
Sounds scary, but there is good news with these changes, some concepts you simply need to be aware of when buying leads, and possibly make some changes in the way you handle leads.
The best news is that leads generated from your website that you or your contracted vendor contact are generally safe. If an individual is filling out a form on your listings website that authorizes you to call or text them, they are giving you consent to call or text them at the number they provided. They are also giving consent for your approved ISA vendor to call them on your behalf. Thus, the safest leads are likely the ones you generate by driving traffic to your website.
Where it gets tricky is if you are buying leads from a website that does not make it clear that your specific business will call them. The rule changes are also specific to robocalls and auto-dialers. Any source that is calling or texting people using an automatic telephone dialing system or an artificial or prerecorded voice could be violating the new rules if they have not obtained proper consent.
Let’s take a step back and look at the specifics.
The FCC rule says people need to give “express written consent” before someone calls or texts them via robotext, robocall, or auto-dialer. “Prior express written consent” can be obtained from an individual in a number of ways, but is commonly obtained by identifying the caller and purpose of the call in the web form an individual submits.The individual needs to sign an agreement that “clearly and conspicuously” authorizes only you—the person or entity on whose behalf a call or text is initiated, to call or text the individual at the number provided. The agreement must also inform the individual that they are not required to enter into such an agreement as a condition of purchasing any property, goods, or services.
Additionally, calls and texts made pursuant to an express written consent must be logically and topically associated with the interaction that prompted the consent. Sounds simple and obvious, but there have been organizations that generate leads by simply dialing people about a related business. The FCC gave an example of what not to do: "a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation."
If you think that doesn’t apply to you, consider there have been some organizations that generate leads by cold calling recently divorced people to ask if they need a real estate agent. Maybe these groups have given you numbers to call. Do you have consent to call them? Probably not because (1) these individuals have not provided express written consent for you, the real estate agent, to call them, and (2) listing and real estate services are probably not “logically or topically associated” with the divorce services that likely prompted the initial consent. If you have a lead in your database who has not provided written consent for you to call them, you can no longer call them after January 27, 2025.
It also means that if you have been selling “leads” to third parties that use an autodialer, artificial voice messages or prerecorded voice messages to call your customers, those third parties can no longer call the leads after January 27, 2025. If the third party does not use an autodialer nor artificial or prerecorded voice messages and the consumer provided general permission to be contacted by related third parties, the third party’s outreach to the leads may be compliant if those leads are being scrubbed against the federal Do Not Call list. Otherwise, under the 1:1 consent rules, you must get a separate written consent from the customer for each third party to whom you wish to sell leads.
For example, if you let your favorite moving company call your customers when they put an offer in, you’re doing pretty much the same thing as the FCC example. The customer consented to be called by you, not everyone you know. The customer also consented to be called about real estate services, not moving services. If you do this, relax, you aren’t about to be arrested. Simply get the customer to sign an agreement authorizing the mover to call or text them about moving services, or, better yet, let the customer call the mover themselves. Don’t simply hand off a list of names and numbers to the movers.
What’s the “good news” here? By tightening consent rules, the FCC will be eliminating a lot of low-quality leads and the people who do end up on the phone with you will have specifically agreed to the call. That means higher quality. But that could come at the cost of lower volume and higher prices per lead. A market with fewer, more expensive, but higher quality leads means it’s more important than ever to contact them quickly.
It is good to use a vendor with a legally compliant call center to do that initial outreach within seconds of a lead submission. What about those vendors- how do you know they’re compliant and how are they impacted by these rules?
The short answer is that they are representatives of you, so if consent is given for you to call it is also given for them to call on your behalf. It is important to ask a few questions here. The FCC is particularly interested in limiting cold calling by auto-dialers- so called robocalls. Ask your provider if they use auto-dialers in their process. If they do, take special care to ensure they are in compliance with the new laws.
Make sure the leads you generate or purchase are 1:1 consent compliant. While you’re reviewing for these new rules, make sure the vendor is compliant with all existing phone solicitation regulations. For example, are they calling only within the hours allowed by your state and asking only questions state and national laws allow an unlicensed representative to ask?
Legal change is always nerve-wracking and introduces costs and risks we don’t expect. There is a good side though. Many of the “leads” generated in our industry have been labeled “awful” simply because the consumers are confused when they get a call. They don’t remember submitting a lead or they didn’t realize you would be calling them instead of someone else, or they’re angry that a real estate agent is calling them at all. Those aren’t pleasant experiences for you or them. It’s much better to have a conversation everyone agrees they want to have. These rules and the vendors who implement them can make that happen.
Sources:
https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-64
https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf
Internal PrimeStreet Legal Review.