A person dialing a smartphone

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Supreme Court Offers Clarity on Cell Phones and Marketing

April 7, 2021

Real estate professionals can breathe a sigh of relief when it comes to using their cell phones to make marketing calls and text messages. In a unanimous decision last Thursday, the Supreme Court held that only devices that have the capacity to store or dial numbers actually using a random or sequential number generator are covered by the Telephone Consumer Protection Act.

In other words, a cell phone that does not have an application that randomly or sequentially dials numbers will not be considered an automated telephone dialing system and will not be subject to the restrictions of the act.

The long-awaited opinion in the Facebook Inc. v. Duguid case reverses a decision by the Ninth Circuit Court of Appeals.

“This is an important ruling for real estate professionals looking for ways to grow their business since it eliminates a handful of restrictive federal court holdings suggesting that any marketing call using a cellular phone required prior express written consent of the person being called,” says Jon Waclawski, senior political compliance counsel and director of legal affairs with the National Association of REALTORS®.

“Now, real estate professionals may use their cellular phones to make marketing calls to numbers not on the Do-Not-Call list without prior consent.”

Still, he adds, callers must remember that the Do-Not-Call restrictions still apply and should continue to adhere to any applicable call laws. “This area of law will remain a moving target as Congress and potentially states consider making new laws affecting marketing calls,” Waclawski says.