The highest court in the land has narrowed the definition of the Automatic Telephone Dialing System (ATDS) which means all of the arguments about whether a dialer is legal or not are now irrelevant; now, it’s all about what defines an ATDS, and consent from consumer is no longer required.
The technology is no longer under the microscope; it’s not what presents the highest risk for real estate agents who do telephone prospecting. This new ruling has the risk lying with being in violation of the National Do Not Call (DNC) Registry. Basically, the liability lies with the actions of the agent and not with the technology they choose to use. So, choose the technology (aka dialer) that helps you be most productive.
Class action attorneys have been hammering away for several decades at companies using efficient automated technologies for debt collection calls, account alert text messages, prescription reminders, and utility notifications. Their continued efforts to form class action law suits has been greatly reduced by this decision. This new decision by the court has stripped attorneys of their foundation to go after the technology used in dialing customers. The only thing left standing in the Telephone Consumer Protection Act (TCPA) that has liability, is the DNC.
At the beginning of April, the Supreme Court issued its decision in Facebook, holding that “[t]o qualify as an ‘automatic telephone dialing system,’ a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1167 (2021). It’s a narrow interpretation of the ATDS definition, the Court ruled it “excluded equipment like Facebook’s login notification system,” which sends automated login notification texts to its users.
Attorney Artin Betpera, an expert in the TCPA, states, “these types of informational calls and texts are the biggest benefactors of the risk reduction resulting from the Facebook decision. Practically speaking, this means that consent is likely no longer required to make purely information calls or texts to cell phones.”
Betpera also concludes the Court’s opinion in Facebook has meaningfully lowered the risk of using automated technology to call or text consumer cell phones for the simple reason that the technology likely no longer meets the ATDS definition as interpreted by the Supreme Court. However, while the Court’s opinion was very positive in this respect, it didn’t strip away all legal risk.
Before this ruling telemarketing calls or texts made for the purpose of promoting the purchase of a good or service carried high risks. TCPA requires prior express written consent requirement upon any telemarketing call or text made to a cell phone using an ATDS. Because of this ruling those heightened consent requirements likely no longer apply. However, it does leave intact the rules around the National Do Not Call Registry. Telephone solicitations do not include calls or texts to a consumer with which the caller has an “established business relationship” (“EBR”), or who has provided their “prior express invitation or permission,” to be called. An EBR is defined as either an inquiry by the consumer regarding the business’s products or services made within three months preceding the call, or a transaction with the consumer within the 18 months preceding the call.
“Although marketing and promotional calls still remain subject to regulation under the TCPA, this flexibility provides businesses with more avenues to mitigate the legal risk arising out of such campaigns,” writes Betpera.
What the Ruling Gives
According to Betpera, the ruling gives:
- Automated informational calls enjoy the most significant risk reduction
- Promotional/marketing messages are still subject to regulation under the DNC rules, but businesses are afforded more flexibility in fashioning compliant campaigns
- The status quo remains on pre-recorded or artificial voice calls
Best Practice:
Make sure you allow for basic opt-in & opt-out options.
Auto-Dialer
The Supreme Court narrowly defined what constitutes an auto-dialer, companies may not need prior express consent when using automated systems that store and dial (or message) phone numbers as long as they do not use a random or sequential number generator to store or produce numbers, provided they do not use a prerecorded or artificial voice.
Summary
There is much reduced risk in using a dialer or multi-line dialer, and it’s a highly efficient way to prospect for real estate clients. This ruling shows that all dialers can now be considered equal in their compliance of the law, because the real risk lies in the illegality of calling someone on the National DNC Registry. The new Supreme Court opinion has limited the class action hungry attorneys from targeting the technology. It’s not about the technology (aka the dialer), it’s about your behavior. Again, the National DNC Registry is still in effect, but most agents find the risk of getting caught violating it to be low.
As any high producing agent will tell you, it’s a numbers game. The more people you talk to the more transactions you’ll get. The Supreme Court just made it easier for you to reach more people on the phone without running into legal problems with TCPA. Find and use the dialer that helps you potentially reach the most prospective clients.
Don’t forget, it is your responsibility for understanding these laws. The National DNC can still be enforced.
