Real Estate Agents: Expired Listings, FSBO Calls, and Do Not Call
A call or text from a real estate agent to a for-sale-by-owner seller or an expired listing, offering to list the home, is a telephone solicitation under the TCPA’s definition. If the number is on the National Do Not Call Registry, the call needs an exception: written permission, an established business relationship, or a personal relationship with the agent. A listing ad alone isn’t one of those under the federal rules. Brokerages that scrub and document their exceptions have real defenses.
Why is a listing call a “telephone solicitation”?
Because the agent is selling a service.
The FCC defines 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,” under 47 C.F.R. § 64.1200(f)(15). An agent calling a homeowner to win a listing agreement is encouraging the purchase of brokerage services. The seller’s own plan to sell the house doesn’t change that, because the call’s purpose is the agent’s service, not the seller’s property.
The Do Not Call rule then bars telephone solicitations to “A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry,” under § 64.1200(c)(2). The National Do Not Call Registry is the federal list of numbers whose owners don’t want telemarketing. The rules reach texts to cell phones too: they apply to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” to the extent described in a 2003 FCC order, under § 64.1200(e).
Doesn’t a FSBO listing invite agents to call?
Not under the federal rule, in my view, unless the seller actually invited agent calls.
The definition excludes a call “To any person with that person’s prior express invitation or permission,” in § 64.1200(f)(15)(i). A FSBO ad invites buyers to call about the house. It doesn’t invite agents to pitch their services, and some FSBO ads expressly discourage agent calls. I wouldn’t build a prospecting program on the theory that a listing ad is permission.
For numbers on the Registry, the rule is stricter. The permission exception there “must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed,” under § 64.1200(c)(2)(ii). A public ad doesn’t meet that standard.
California’s own Do Not Call statute reads a little differently. Its exception for written permission puts the burden on the caller to produce a signed document “or an advertisement by the subscriber,” under Business and Professions Code § 17592(e)(1). That language may help an agent under state law. It doesn’t change the federal analysis.
What about expired listings?
An expired listing is usually a stranger’s number, and the same Registry rules apply.
The seller’s prior relationship was with the listing brokerage, if anyone. The FCC’s established business relationship requires “a voluntary two-way communication” based on a purchase or transaction “within the eighteen (18) months immediately preceding the date of the telephone call” or an inquiry “within the three months immediately preceding the date of the call,” under § 64.1200(f)(5). A seller who never dealt with the calling agent has no relationship with that agent. Data services that sell expired-listing phone numbers don’t supply one either.
Lead lists add a second issue. California bars anyone who sells or rents “telephone solicitation lists” from including numbers on the current do-not-call list, with exceptions for directories, under § 17592(d). Ask your list vendor whether it scrubs, but scrub again yourself. The federal safe harbor depends on your own process.
Can agents call their own past clients and friends?
Yes, within limits, and this is where agents have the most room.
Past clients may fall within the established business relationship if the transaction was within 18 months. After that, the federal exception lapses unless something newer creates one.
Friends and acquaintances are covered by a separate exception. The Registry rule doesn’t apply where “The telemarketer making the call has a personal relationship with the recipient of the call,” under § 64.1200(c)(2)(iii), and “personal relationship” means “any family member, friend, or acquaintance of the telemarketer making the call” under § 64.1200(f)(17). The FCC described it in its 2003 order as “an individual personally known to the telemarketer making the call,” and said it would ask “whether a reasonable consumer would expect calls from such a person because they have a close or, at least, firsthand relationship.”
Two cautions. The exception belongs to the person making the call, so it doesn’t stretch to a brokerage’s call center or to another agent working the same database. And the FCC warned that anyone “relying on personal relationships abusing this exemption may be subject to enforcement action.” A purchased “sphere” list isn’t a sphere.
Does California add rules for agents calling California numbers?
It does, with some exemptions that fit small real estate practices.
California prohibits a “telephone solicitor” from calling numbers on the then-current do-not-call list to sell or promote services, under § 17592(c). Its exceptions include an established business relationship, which runs with “the licensed agent or broker individually” when a subscriber buys through one, under § 17592(e)(4).
There’s also a small-business exemption in § 17592(e)(5). It covers calls by a business with “no more than five full- or part-time employees or independent contractors,” when the businessperson or a principal “makes the telephone calls himself or herself” to sell the business’s own services, which can’t be telemarketing services, to subscribers “within a 50-mile radius,” per the statute. Independent contractors that a regulatory scheme requires the business to have a written agreement with aren’t counted. For a small brokerage, that last sentence deserves a close read.
The state remedy is limited. A person may sue in small claims court for an injunction, and may seek a civil penalty “up to one thousand dollars ($1,000)” only for later solicitations within 30 days after the injunction is served, under § 17593(b). Accidental violations made against the solicitor’s policies and training are an affirmative defense under § 17593(d). None of this replaces the federal TCPA claim, which is where the larger exposure sits.
Real estate prospecting claims and the defenses that answer them
| Claim theory | Statute or rule | Exposure per call or text | Defenses |
|---|---|---|---|
| Listing solicitation to a number on the National Do Not Call Registry | 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2), (e) | Up to $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | Signed written permission, established business relationship, personal relationship, more than one call in 12 months required, safe harbor or reasonable practices |
| Autodialed or prerecorded prospecting without consent | 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B), (b)(3); 47 C.F.R. § 64.1200(a)(2), (a)(3) | $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | No autodialer or prerecorded voice used, or written consent |
| California Do Not Call statute | Bus. & Prof. Code §§ 17592, 17593 | Small claims injunction first, then up to $1,000 for violations within 30 days after service | Statutory exemptions, including small business and established relationship, and the accidental-violation defense |
The federal damages rules come from 47 U.S.C. § 227, subsections (b)(3) and (c)(5). The private Do Not Call claim requires “more than one telephone call within any 12-month period by or on behalf of the same entity,” and the court decides whether to increase an award.
First steps when a seller’s lawyer sends a demand
Brokerages should treat a prospecting claim as a records exercise before anything else. The firm’s TCPA defense lawyers page covers how these claims move once a demand arrives. Then:
- Preserve the call and text logs, dialer or texting-app data, and any permission or sign-up records for the number, under a litigation hold.
- Export the brokerage’s and the agent’s internal do-not-call lists and opt-out records, with dates.
- Pull the National Do Not Call Registry scrub records and Registry version dates for the agent’s prospecting lists.
- Collect the lead-list and data-vendor contracts, the agent’s independent contractor agreement, call scripts, and any prerecorded or AI-voice messages.
- Talk to a lawyer before calling the seller back, replying to the letter, or offering anything to settle.
Brokerages that let agents dial from personal devices should also read our post on internal do-not-call policy claims, because a seller’s stop request has to be honored by everyone calling on the brokerage’s behalf, and California extends some requests to entities that share a brand name.
Questions agents and brokers ask about prospecting calls
Can I text an expired listing instead of calling?
A text is treated the same way. The FCC’s Do Not Call rules apply to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers” under § 64.1200(e). Scrub texting lists just like calling lists. If the texting tool sends automatically from a list, check the autodialer and consent rules as well.
Is the brokerage liable for an independent contractor agent’s calls?
It can be. The FCC’s Do Not Call rule reaches any “person or entity making telephone solicitations (or on whose behalf telephone solicitations are made),” under § 64.1200(c)(2), so a plaintiff may name the brokerage. California’s statute adds that a business “does not necessarily qualify as a telephone solicitor” when an independent contractor it doesn’t control markets its services, under § 17592(b). Written policies and training help either way.
How long can I call a past client?
Under the federal rule, the established business relationship lasts 18 months after the transaction and ends sooner if the client asks you to stop, per § 64.1200(f)(5). After that, you need another exception, such as a personal relationship or signed written permission, for a number on the Registry.
Does the Registry rule apply to calls within one state?
The FCC’s Do Not Call rules have no interstate requirement. Its 2003 order says “the TCPA applies to both intrastate and interstate communications.” The FTC’s Telemarketing Sales Rule is different: it defines telemarketing as a campaign that “involves more than one interstate telephone call,” in 16 C.F.R. § 310.2. A local agent calling local sellers is still covered by the FCC’s rules.
If a seller has sued your brokerage
If your brokerage or agents are accused of calling or texting FSBO sellers or expired listings on the Do Not Call Registry, the scrub records and the exception each call relied on usually decide the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prospecting calls and texts to homeowners. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version as of May 28, 2025. The FTC’s definitions are at 16 C.F.R. § 310.2. California’s Do Not Call statute is Business and Professions Code § 17592 and its remedies are in § 17593.
The FCC order is the 2003 Report and Order, FCC 03-153 (July 3, 2003).
This post is general information about the Telephone Consumer Protection Act and related laws as of May 28, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.