Questions and Answers
The Federal Communications Commission ("FCC") changed its
regulations ("Rules") enacted pursuant to the authority given it by Congress in
the Telephone Consumer Protection Act of 1991. The rules created a national do-not-call registry for which consumers can register. The
cold-calling activities of real estate professionals after October 1, 2003 have
to comply with the requirements of the new federal do-not-call registry.
These are not intended to be definitive interpretations
of the Rules, but rather are based on our best understanding of the FCC's
actions. If you are unsure of how the Rules will impact your telemarketing
activities, it is recommended that you consult with your attorney before taking
any action.
What is the
Do-Not-Call Registry and how did it come about?
In December of 2002,
the Federal Trade Commission ("FTC") finalized amendments to the Telemarketing
Sales Rule ("TSR"). Key among the changes was the development of a national
"Do-Not-Call" registry directed at stopping most unwanted interstate
telemarketing calls to consumers. The new FTC rules provide consumers with the
ability to place their telephone number on the registry. Telemarketers will be
prohibited from calling anyone whose name is on the registry unless they meet
certain criteria.
In a separate but
similar effort, on June 26, 2003, the FCC announced final amendments to its
telemarketing rules that would, among other things, prohibit
intrastate
calls to any person on the National Do-Not-Call registry, in addition to the
prohibition against interstate calls established under the FTC rule. This is a
significant change and as a result, all real estate professionals making
interstate as well as intrastate calls must comply with the requirements of the
National Do-Not-Call registry, regardless of state law exemptions.
What if my state
has a "do not call" rule that provides an exemption for real estate licensees or
other real estate activity exemption? Does the FCC rule still apply to
intrastate calls that are permitted under my state's law?
Yes. The FCC action
preempts state law that is less restrictive. A state do not call law that
provided an exemption for real estate licensees would be considered less
restrictive and therefore preempted, prohibiting real estate professionals in
that state from making intrastate calls to persons on the Federal list,
notwithstanding the state exemption. It is also important that other exemptions
in the state law such as those for existing business relationships be considered
when determining compliance requirements.
How do I get the
list and what does it cost?
Telemarketers can access the registry by registering on the
FTC's website. Following
registration, the telemarketer will receive a unique account number that they
may provide to any telemarketer or service provider that they employ on their
behalf. In a real estate brokerage, real estate brokers can register and provide
the account number to their agents. This will allow agents within the same
brokerage the ability to access the registry under the same registration as the
broker. The rules establish a bright line test under which corporate divisions,
subsidiaries, and affiliates will be treated as separately for the purposes of
gaining for access to the registry. Entities will be considered separate if: 1)
they are separately incorporated or for a non-corporate entity such as a
partnership, they are a distinct legal entity, and 2) they have different names
or market their products under different names.
The list will be
sorted by area code and telemarketers will be able to obtain the requested area
codes from the FTC. It will be the responsibility of the telemarketer to update
their lists quarterly.
The FTC will also
maintain an Internet page where telemarketers can look up a single number at a
time free of charge. Telemarketers can look up to ten (10) numbers at a time.
When did the
"do-not-call" requirements go into effect?
Enforcement of the
Do-Not-Call registry requirements began October 1, 2003.
Are there any
exemptions to the rule?
Yes. There are few
exemptions to the new rules. A telemarketer may call the following:
-Consumers with whom
the seller has an existing business relationship. This applies to existing
clients and customers and extends for up to 18 months after the end of a
transaction. If a consumer makes an inquiry, the telemarketer can call the
person for up to three months after the inquiry.
-Persons who have
granted prior express permission to call. This permission must be in writing.
In addition, the rules
do not apply to the following entities
-Charities and tax
-exempt nonprofit organizations
-Political campaigns
-Callers taking
surveys or polls.
Do the rules
apply to calls made to FSBO's?
There are two
instances when a real estate professional would call a FSBO seller. The first
would be a real estate professional seeking a FSBO listing, and the second would
be a buyer's representative who believes his/her client might be interested in a
FSBO property. NAR does not see any problem with a buyer's representative
contacting a FSBO owner whose number is listed in the Do-Not-Call registry about
a client's potential interest in the property, as this call is not a telephone
solicitation by the buyer's representative. Note that the buyer's representative
can only discuss his/her client's interest in the property and not use a
purported client's interest as a way to also discuss the possibility of the FSBO
owner listing his/her property with the buyer's representative.
However, a real estate
professional would be prohibited from initiating a telephone call to a FSBO
seller whose number is listed in the Do-Not-Call registry in an attempt to
obtain a listing. The rules prohibit anyone from making telephone solicitations
to telephone numbers that are registered in the database, and a call initiated
to obtain the listing falls within that definition. NAR is seeking clarification
from the FCC for calls made to consumers in response to a yard sign or an
advertisement in the newspaper that provides a telephone number. Until this
clarification is provided, it is advisable to take a conservative approach and
check the registry first for the telephone number, and refrain from calling if
the number appears on the list.
Do the rules
apply to calls made to businesses?
No, the Do-Not-Call
Registry is only for residential telephone numbers.
How will these rules be enforced?
The FCC provides for a
private right of action. Aggrieved consumers can sue if they receive two calls
in violation of the regulations by the same company within a twelve month
period.
A consumer calls my
office to inquire about a listing. Can I call this consumer to talk about other
listings over the next three months, or I am limited to only discussing the
property which prompted the consumer's call?
The Rules permit a
company to call consumer following an inquiry for three months after the inquiry
or until the consumer requests to be placed on the company's do-not-call list.
There is no limit on what the company can discuss with the consumer during those
three months. Thus, other listings could be discussed with the consumer over the
next three months.
A former client
calls and tells me a friend of hers would like me to call her to discuss the
possibility of her listing her home with me. Do I have to check the Do-Not-Call
registry before making this call?
Yes, you would need to
check the Do-Not-Call registry because it is not clear whether this sort of
indirect inquiry would qualify as a "customer inquiry" within the Rules. NAR is
seeking clarification from the FCC on what exactly constitutes an "inquiry"
which would give a telemarketer the ability to call someone, so perhaps
following clarification from the FCC, we will be able to better address this
question.
Can I call visitors
to an open house who provide their phone numbers on a sign-in sheet?
Whether this would
qualify as a customer inquiry is not clear from the Rules, and this is another
area where NAR is seeking clarification from the FCC. The safest course would be
to provide some kind of notice on the sign-in sheet alerting visitors that they
are consenting to receive a follow-up call, such as providing space on the
sign-in sheet for visitors to include their name, telephone number, and a box
next to each line allowing the visitors to check "yes" if they would like to
receive a follow-up call.
What are the fines
and are there any safe harbors?
The fine for calling
someone whose name appears on the Do-Not-Call Registry is up to $11,000 per
call.
There is a "safe
harbor" for inadvertent mistakes. To meet the safe harbor, the entity making the
call must demonstrate that:
-It has written
procedures to comply with the do not call requirements
-It trains its
personnel in those procedures
-It monitors and
enforces compliance with these procedures
-It maintain a company
specific list of telephone numbers that it may not call
-It accesses the
national registry no more than three months prior to calling any consumer and
maintains records documenting this process
-Any call made in
violation of the do not call rules was the result of an error
Source: National Association of REALTORS®
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