The communications industry, in conjunction with federal and state law enforcement agencies, have deployed a multi-prong strategy to combat illegal robocalls. An important tool is traceback.
The Industry Traceback Group (“ITG”)1 —the FCC-designated group that runs the mandatory traceback process that U.S. carriers must respond to—works with voice service providers to combat illegal calls by tracing them to their origin. The ITG has recently taken the position that calls made for the purpose of offering to buy the called party’s real estate are “telephone solicitations.” Therefore, according to the ITG, these calls are subject to the TCPA’s National-Do-Not-Call Registry rules and the Federal Communications Commission’s (“FCC”) implementing regulations.
National Do-Not-Call Registry Rules
The TCPA and the FCC’s implementing regulations restrict “telephone solicitations” to residential telephone subscribers whose telephone numbers are on the National Do-Not-Call Registry (“NDNCR”).2 Congress defined a “telephone solicitation” as:
The initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.3
If such calls are made with the called party’s consent or pursuant to an established business relationship (“EBR”), they are not “telephone solicitations.”
ITG’s Position
The FCC has selected the ITG to investigate the sources of suspected unlawful robocalls.4 Relying on a handful of more recent cases,5 the ITG has recently taken the position that calls made for the purpose of offering to purchase real estate from the call recipient constitute “telephone solicitations.” Thus, in the ITG’s view, such calls are unlawful when made to a residential telephone subscriber whose number is on the NDNCR, without the subscriber’s consent or an EBR.
These recent cases are contrary to various federal district courts that have found that calls containing an offer to purchase something from the call recipient do not constitute telephone solicitations.6 The FCC itself has stated that “calls by real estate agents who represent only the potential buyer to someone who has advertised their property for sale, do not constitute telephone solicitations, so long as the purpose of the call is to discuss a potential sale of the property to the represented buyer[.]”7
Based on the ITG’s latest position, you have various options available. For example, you can scrub your calling lists against the NDNCR. ,You could also review your scripts and public-facing messages to assess whether your statements could be misconstrued as offering a service to the called party.
This is not legal advice. You should consult a qualified attorney for your compliance needs.
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[1] https://tracebacks.org/about/
[2] See 47 C.F.R. § 64.1200(c)(2).
[3] See 47 C.F.R. § 64.1200(f)(15); 47 U.S.C. § 227(a)(4).
[4] Congress defined “suspected unlawful robocall” as a “call that the Commission or a voice service provider reasonably believes was made in violation of subsection (b) or (e) of section 227 of the Communications Act.” (Telephone solicitations are regulated under 47 U.S.C. § 227(c), but the ITG claims it is authorized to investigate any “fraudulent, abusive, or unlawful” traffic, which would, of course, make Congress’s definition of “suspected unlawful robocall” superfluous.)
[5] See McMorrow v. Core Props., LLC, No. 4:23-cv-00126-JAR, 2023 U.S. Dist. LEXIS 223207, at *34-36 (E.D. Mo. Dec. 15, 2023) (finding text messages “meant as an offer to purchase Plaintiff’s home” were telephone solicitations as the offer was “coupled with the offer to provide Plaintiff” with “the service of finding and selecting the title company to effectuate the purchase contract and deed transfer” for an effective fee, with the effective fee being the revenue the caller collects from its subsequent sale of the property at a higher price “or the fee charged for the assignment of the purchase contract to a third-party purchaser.”); Eagle v. GVG Cap., LLC, No. 22-cv-638, 2023 U.S. Dist. LEXIS 15834, at *2, *7, (W.D. Mo. Jan. 31, 2023) (holding that plaintiff plausibly alleged that text messages asking if plaintiff “was interested in selling her home[,]” were telephone solicitations where plaintiff alleged that “the text messages offered home selling services” and the caller-defendant’s website stated that its purpose was to provide home-selling services); Pepper v. GVG Cap. LLC, 677 F. Supp. 3d 638, 642 (S.D. Tex. June 9, 2023) (finding plaintiff plausibly alleged that defendant’s offers to buy her home were telephone solicitations based on plaintiff’s allegations that defendant was soliciting its “cash home-buying services[,] . . . and [a]rranging for title and escrow services to be provided” for the homeowner, and “assisting with legal aspects of the home sale, such as the transfer of title and the real estate purchase contract[,]” in exchange for an “effective fee”).
[6] See Hunsinger v. Offer, LLC, Civil Action No. 3:21-CV-2846-BH, 2022 U.S. Dist. LEXIS 234862, at *9, *12 (N.D. Tex. Dec. 7, 2022) (holding that calls that allegedly inquired into purchasing plaintiff’s real property were not telephone solicitations and recognizing that “[d]istrict courts . . . have generally found that the terms ‘telephone solicitation’ and ‘telemarketing’ do not encompass calls for the purpose of offering to purchase something from the recipient, as long as they do not also encourage the recipient to purchase, rent, or invest in the caller's property, goods, or services.”); Jance v. Homerun Offer, LLC, No. CV-20-00482-TUC-JGZ, 2021 U.S. Dist. LEXIS 143145, at *12-13 (D. Ariz. July 29, 2021) (stating that the definitions of “telephone solicitation” and “telemarketing” do not “encompass[] a scenario in which the caller offers to buy something from the recipient of the call[,]” and finding that calls made for the purpose of purchasing Plaintiff’s home were not telephone solicitations.); Hulsey v. Peddle, LLC, CV 17-3843 DSF (ASx), 2017 U.S. Dist. LEXIS 221988 (C.D. Cal. Oct. 23, 2017) (text messages offering to pay plaintiff for her car were not plausibly alleged to be telephone solicitations); Murphy v. DCI Biologicals Orlando, LLC, Case No: 6:12-cv-1459-Orl-36KRS, 2013 U.S. Dist. LEXIS 181732 (M.D. Fla. Dec. 31, 2013) (messages that offered money in exchange for plaintiff’s blood donations were not “telephone solicitations” since they did not encourage the plaintiff to purchase, rent or invest in anything; rather, they sought to buy something from plaintiff).
[7] In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 20 F.C.C. Rcd. 3788, 3793 (2005).
Joe Bowser
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
