Texting and Prospecting Pitfalls

Prospecting is an incredibly important part of the real estate industry. However, on November 27, 2019, a lawsuit was filed against a Florida real estate agent in the Circuit Court for the Eleventh Judicial Circuit in Miami-Dade County, Florida, claiming the recipient was contacted by text without his prior written consent. The suit alleges a violation of the Telephone Consumer Protection Act (“”TCPA”), which is the main 1991 anti-telemarketing law in the United States.

Text marketing is a fast and cost-efficient way of reaching your customers, especially thanks to its 95%+ read rate. The Federal Communications Commission oversees communications by satellite, wire, radio, television, and cable, so text marketing also falls in its territory. Text messages are considered transactions similar to phone calls and also fall under the TCPA.

The law prohibits sending telemarketing texts without written consent of the recipient. “Telemarketing texts” are defined as those that are initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, 47 CFR §64.1200(f)(12). However, even non-telemarketing texts which are being sent through the use of an autodialer require certain types of consent. Nevertheless, if the potential client asked for information, you don’t need consent to send the information by text.

The plaintiff in the Florida lawsuit claims he was working at the time he received the message, so he had to stop working to check his phone. After receiving the message, he spent several seconds reading the advertisement, and then wondered why he had received it. In addition to distracting him during the course of his work, the text message also took up space on his phone and depleted his battery. The lawsuit is seeking certification as a class action and fines may be imposed in an amount between $500 and $1,500 per violation.

For more information see the short video by the National Association of Realtors© “TCPA and Texting”.

For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.

Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.