Do Not Call Rules Update

The Federal Trade Commission and the Federal Communications Commission recently adopted rules regulating telemarketing. These rules established a national Do Not Call registry, which is a database that contains the telephone numbers of people who do not want to receive telephone sales solicitations. This update includes a summary of the latest developments on the Do Not Call registry, and a variety of resources you can use to make sure you’re fully informed on the Do Not Call requirements.

Recent Developments
On February 18, 2005, the FCC issued an order addressing issues raised by NAR concerning the application of the Do Not Call rules to the real estate industry. The Do Not Call rules generally prohibit a telemarketer from calling a person whose telephone number is on the national Do Not Call registry. Specifically, NAR requested that the FCC clarify that calls to For Sale By Owners and expired listings fall outside the scope of the Do Not Call rules. The FCC did clarify that calls to FSBOs by real estate professionals representing a potential buyer are not telephone solicitations, so long as the purpose of the calls is to discuss the potential sale of the property to the represented buyer. Unfortunately, the FCC declined to exempt from the Do Not Call rules calls to expired listings and to FSBOs for the purpose of offering services to residential subscribers (homeowners).

National and State Resources
NAR has established an entire Web page dedicated to the Do Not Call and Do Not Fax rules. This site contains valuable information on the latest developments with the rules, analysis of how the rules will impact the real estate industry, and a link to an archived Web cast seminar on the rules.

NAR’s Web page on the Do Not Call and Do Not Fax Laws: https://www.nar.realtor/fcc-do-not-fax-rule#section-166080

NCAR has developed a model policy to guide members in preparing a telephone solicitation policy for their real estate offices: http://www.ncrealtors.org/index.php?option=com_docman&task=doc_download&gid=412&Itemid=871

The Do Not Call Registry
Individuals can add their telephone numbers to the Do Not Call registry by telephone or the Internet. Telemarketers must consult the registry monthly to make sure that they do not make a call that is a “telephone solicitation” to any of the telephone numbers listed on the registry. A “telephone solicitation” is defined as a call or message for the purpose of encouraging the purchase or rental of a property, good, or service. Additionally, telemarketers must transmit their telephone number and, if possible, their name to the recipient’s caller ID service. It is important to note that these requirements apply to both interstate calls (made across state lines) and intrastate calls (made within a state) and they apply to calls made to wireless telephone numbers.

The following types of calls are not subject to the requirement to consult the registry:

• Calls made to businesses.
• Calls made to a person if you have that person’s prior express permission in writing.
• Calls made to a person with whom you have an “established business relationship”. An established business relationship applies to existing clients and customers and extends for up to 18 months after the end of a purchase or transaction. In addition, the established business relationship allows you to call a person for up to three months after they have made an inquiry or application regarding products or services that you offer.
• Calls made to a person with whom you have a personal relationship (i.e., they are a family member, friend, or acquaintance).
• Calls made by or on behalf of a tax-exempt nonprofit organization.

Enforcement
The fine for calling someone whose name appears on the Do Not Call registry can be up to $11,000 per call. The rules also provide for a private right of action. Aggrieved consumers can sue and recover up to $500 if they receive two calls in violation of the rules by the same person or entity within a twelve month period. The rules contain a  “safe harbor” provision that provides that a party will not be held in violation of the requirement to consult the registry when they are otherwise attempting to comply. This safe  harbor provision applies when the entity making the call can demonstrate that:

• It has written procedures to comply with the rules.
• It trains its personnel in those procedures.
• It monitors and enforces compliance with these procedures.
• It maintains an internal list of telephone numbers that it may not call.
• It accesses the registry no more than 31 days prior to calling any consumer and maintains records documenting this process.
• Any call made in violation of the rules was the result of an error.

Click here for more information on the safe harbor provision: https://www.nar.realtor/legal/complying-with-federal-regulations/do-not-call-registry/safe-harbor-provision

Other Requirements
No telephone solicitations can be made before 8:00 am or after 9:00 pm and the person making the call must identify themselves, the entity on whose behalf they are calling,  and provide an address or telephone number at which the person or entity may be contacted. For calls that are exempt from the requirement to consult the registry (except for calls from a tax-exempt nonprofit organization) and calls made to persons not on the registry, if the recipient of your call asks that you not call them, you must record and  honor this request. An internal list of these numbers must be kept for at least 5 years and there must be a written policy and employee training regarding this internal list.

Application to the Real Estate Industry
One of the most common questions regarding how the Do Not Call rules will affect the real estate industry is how the rules will be applied to calls made to individuals listing  their property For Sale By Owner. On February 18, 2005, the FCC issued an order addressing issues raised by NAR concerning the application of the Do Not Call rules to the real estate industry. The FCC stated that calls to FSBOs by real estate professionals representing a potential buyer are not telephone solicitations, so long as the purpose of  the calls is to discuss the potential sale of the property to the represented buyer. Unfortunately, the FCC declined to exempt from the Do Not Call rules calls to expired listings  and to FSBOs for the purpose of offering services to residential subscribers (homeowners).

Accessing the Do Not Call Registry
Access to the registry is provided by registering at the FTC’s Web site (https://telemarketing.donotcall.gov/) at which time the telemarketer will receive an account number that may be provided to any employee that makes telephone solicitations on behalf of the company. Thus a real estate broker can register and provide the account number to  their agents. This allows agents within the same brokerage the ability to access the registry under the same registration as the broker.

Telemarketers must update their lists monthly. The registry is sorted by area code and five area codes will be provided at no charge with additional area codes costing $56  each, up to a maximum annual fee of $15,400 for access to the entire registry. Note, the fee will increase to $62 effective September 1, 2006. These charges will give the  telemarketer access to the area codes they select for one year. The FTC also maintains an Internet page where registered telemarketers can use an interactive phone  number search to search up to 10 numbers at a time.

Click here to view NAR’s outline of the registration process.

NCAR remains actively involved in resolving the issues associated with the Do Not Call rules and will continue to keep you apprised of any new developments. For additional  information, contact our Legislative or Legal staff at 336-294-1415.

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