Our company, Arch, has recently received several calls inquiring about the ability to automatically send a prerecorded call or SMS/text to a consumer who called their 800 call capture number.
The short answer is “no,” you cannot send auto-responders in the form of prerecorded calls or SMS/text messages.
Please note: The following information has been produced by Arch as a result of consultation with an attorney prominent in this area. While we believe it to be accurate and representative of the primary issues concerning our subscribers, it is impossible for Arch to evaluate specific situations or present the rules in their entirety. Therefore, customers that have additional questions about specific situations should seek legal counsel as necessary.
This was not good news for our clients who desired these services, and it was unfortunate for us. We had developed voice and SMS/text auto-responders in 1996 and sold them up to 2006. However, due to updated TSR rules, we terminated these services to stay in compliance and protect our clients.
In legislation that has been pending since 2004, the FTC has announced a ban on prerecorded telemarketing calls without the consumer's express written agreement to receive such calls. Commercial use of SMS/text messaging has always required express written agreement. The requirement affects prerecorded calls after September 1, 2009.
So why are there still companies and agents using voice and SMS/text auto-responders? There is a TSR exemption that allows for you to send calls that are purely "informational", though no such exemption exists for SMS/text. Informational calls are not covered by the TSR under the interpetation that they do not attempt to sell the called party any goods or services. Agents clearly represent a good or service and using voice or SMS/text auto-responders under this exemption is not valid and could get you fined.
You can call the prospective buyer back yourself, even if they are on the Do Not Call, list, under the established business relationship (EBR) exemption. But, the FTC has proposed a broad prohibition on the use of prerecorded messages when the consumer called had not previously given express written permission to the seller to place such calls to his or her number. Violation of the TSR rules can result in an $11,000 fine per occurrence.
In summary, any business selling to consumers must remain aware and compliant with the spirit and specific regulations of the Telemarketing Sales Rule and state-specific regulations. Call Capture, by helping to generate customer inquiries and business relationships, can effectively increase an agent’s ability to appropriately market their products and services; however you must call these leads back live, not with auto-responders. Please visit our website for more information on our suite of real estate lead generation products.
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