Whether real estate purchase calls are subject to the Telephone Consumer Protection Act ("TCPA") is a recent hot topic and subject of debate. The federal district courts are currently split on this issue.1 But 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[.]"2
Given the differing positions of the federal courts and FCC, if you make real estate purchase calls, it is important to be aware of new federal district court opinions addressing this issue. The United States District Court for the District of Arizona just issued such an opinion in Coffey v. Fast Easy Offer LLC,3 which we dive into below, where it held that such calls are not "telephone solicitations." But first, to help understand that opinion, here is some information regarding the relevant portions of the TCPA and the FCC's implementing regulations.
The TCPA and the FCC's Implementing Regulations Regarding the National Do-Not-Call Registry ("NDNCR")
Back in 1991, when Congress created the TCPA, it instructed the FCC, under 47 U.S.C. § 227(c)(1), to create and adopt rules to "protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object." Congress gave the FCC until September 20, 1992 to create and adopt such rules. In the TCPA, Congress defined "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, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization."
Under the TCPA, Congress provided a private right of action to any person that received more than one telephone call within any 12-month period, by or on behalf of the same entity, that violated any of the telephone-solicitation-related rules the FCC created and adopted by September 20, 1992.
In 2003, the FCC, created and adopted its NDNCR rule. That rule prohibits callers from making a telephone solicitation to "[a] residential telephone subscriber who has registered his or her telephone number on the" NDNCR. 47 C.F.R. § 64.1200(c)(2).4 Importantly, the FCC's NDNCR rule uses Congress's definition of "telephone solicitation." Thus, making a sales call to a residential telephone subscriber that registered his or her telephone number on the NDNCR does not violate that rule if the caller has the called party's prior express invitation or permission or an established business relationship with the called party.
The entire debate pertaining to the TCPA's applicability to real estate purchase calls is whether or not they meet the TCPA's definition of "telephone solicitation." If they don't, they aren't subject to the FCC's NDNCR rule. The District of Arizona just held exactly that in Coffey.
Coffey v. Fast Easy Offer LLC
In Coffey, the Plaintiff brought a TCPA claim against the Defendants based on the allegations that she received telephone calls and text messages seeking to solicit her "to sell her home or engage various entities to represent or assist her in the sale of her home." One of the text messages she allegedly received stated: "Hello Vickey, this [sic] Yannick the home buyer. Have you given up on selling your . . . property?" The Plaintiff claimed the calls and texts violated the FCC's NDNCR rules because they were telephone solicitations and her telephone number had been registered on the NDNCR since 2004. The Defendants filed a motion to dismiss on the grounds that the calls and texts were not "telephone solicitations," as defined by the TCPA.
The court agreed with the Defendants and found the calls and text at issue were not telephone solicitations. In support of its holding, the court stated that the "definition of 'telephone solicitation' within the [TCPA] and [the FCC's] implementing regulations d[oes] not 'encompass[] a scenario in which the caller offers to buy something from the recipient of the call."
The Plaintiff argued that the Defendants' offers to purchase her home should be considered "telephone solicitations" because they contained "an implied offer of services" in that the messages were "a pretextual attempt to solicit her to work with Defendants for the sale of her home, which would be to Defendants' ultimate pecuniary benefit" through an effective fee that is deducted from the Defendants' offer price." The Plaintiff's argument was essentially that the calls and texts at issue were telephone solicitations because they were sent with the intent of the Defendants deriving a benefit. But the court disagreed, stating that even if the Defendants ultimately charged the plaintiff an effective fee that would be deducted from the offer price, "the ultimate result of th[e] alleged solicitation would not ever require Plaintiff to purchase, rent or invest in property, goods or services."
The following statement from the court best sums up its reason for holding that real estate purchase calls are not telephone solicitations: "It is true that, construing Plaintiff's factual allegations in the most favorable light, were Plaintiff to agree to use [Defendants'] services to sell her house, Defendants would ultimately benefit from an 'effective fee' deducted from the offer price. In that sense, the calls and texts might constitute 'solicitations' in the colloquial sense of the word. But even if, in that hypothetical scenario, Plaintiff did not make as much money as she might have made selling her home without [Defendants'] services, she would still be making money—and not spending a cent on purchasing any goods or services from Defendants."
If you make or are involved with real estate purchase calls, make sure to add this case to the collection you keep in your back pocket.
Just a reminder, this entire discussion relates to Subsection (c) of the TCPA. A real estate purchase call could still potentially violate Subsection (b) of the TCPA if it is made using an autodialer or artificial or prerecorded voice.
Footnotes
1.The following are some of the federal district court cases that support the position that real estate purchase calls are not subject to the TCPA. 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); 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); Hulsey v. Peddle, LLC, CV 17-3843 DSF (ASx), 2017 U.S. Dist. LEXIS 221988 (C.D. Cal. Oct. 23, 2017); 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).
2.In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 20 F.C.C. Rcd. 3788, 3793 (2005).
3.No. CV-24-02725-PHX-SPL, 2025 U.S. Dist. LEXIS 106786 (D. Ariz. June 5, 2025).
4.The FCC not creating and adopting its NDNCR rule until 2003 begs the question of how there can be a private right of action under the TCPA for telephone solicitations that violate that rule when Congress only provided a private right of action for violations of telephone-solicitation-related rules the FCC created and adopted by September 20, 1992.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
