Do Not Call Legislation
Frequently Asked Questions about Do-Not-Call Registry
As has been widely publicized, the Federal Communications Commission ("FCC")
has changed its regulations ("Rules") enacted pursuant to the authority
given it by Congress in the Telephone Consumer Protection Act of 1991. The
Rules call for the creation of a national do-not-call registry for which
consumers can register. The cold-calling activities of real estate
professionals after October 1, 2003 will need to comply with the
requirements of the new federal do-not-call registry. Click
here to learn more about the
do-not-call registry.
NAR has received numerous questions about the Rules, and below is a
collection of these questions and answers. Note that 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 and also calling time restrictions be considered when
determining compliance requirements, as more restrictive state laws will
remain in effect.
It is also important to note that some states continue to maintain their own
“do-not-call” lists which are not integrated into the federal list. In those
states, real estate professionals who would like to make telephone
solicitations will need to consult both the state and federal lists. Click
here for a list of states who
maintain their own lists and who have not integrated their list with the
federal Do Not Call registry.
How do I get the list and what does it cost?
Telemarketers will be able to access the registry on September 1, 2003. A
telemarketer will receive access to the database 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. Five area codes will be
provided at no charge and additional ones will cost $56.00 per area code, up
to a maximum annual fee of $15,400 for access to the Entire List. These
charges will give the telemarketer access to the area codes they select for
one year. Following the conclusion of the year, the telemarketer will need
to renew its subscription for registry, including paying additional
subscription fees if it has elected to receive access to more than five (5)
area codes.
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.
How often does a business have to check the Registry?
Telemarketers are required to check the Registry at least every thirty one
(31) days.
When will the “do-not-call” requirements go into effect?
Enforcement of the Do-Not-Call registry requirements will begin 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 new 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 of a FSBO
listing, and the second would be a buyer's representative who believes
his/her client might be interested in a FSBO property. A buyer's
representative can contact 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.
Can I still call Expired Listings?
The established business relationship exemption permits the listing agent as
well as other agents from the same company to contact the seller for up to
18 months after the expiration date. For all other agents, the Registry must
be consulted prior to calling. If the seller has placed their number in the
Registry, you should refrain from calling them.
Do the new rules apply to calls made to businesses?
No, the Do-Not-Call Registry is only for residential telephone numbers.
Have the Rules changed the requirements for autodialers and prerecorded
message calls to wireless numbers?
The answer is no. Since 1992, it has been a violation of the Telephone
Consumer Protection Act to use an autodialer or prerecorded message “to any
telephone number assigned to a paging service, cellular telephone service .
. . or any service for which the called party is charged.” Due to the fact
that land-based residential telephone numbers are now being converted to
wireless numbers (or, “ported”), the FCC has recently created a safe harbor
which gives telemarketers who use autodialers or prerecorded messages
amnesty from liability under the TCPA where such calls are made to wireless
numbers within fifteen (15) days after the numbers are ported. Note the
solicitation must otherwise comply with the established “Do-Not-Call” Rules,
meaning that the newly ported number is not in the National Registry or on
the company’s do-not-call list. The FCC has contracted with a private
company to create a list of ported numbers. Any telemarketers using
autodialers or prerecorded messages will therefore need to check this ported
number list prior to making any such calls. Click
here for more information.
How will these new rules be enforced?
The FTC and FCC are working to develop a Memorandum of Understanding to
achieve an efficient enforcement strategy.
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 and collect $500 for each violation.
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.
Can I call visitors to an open house who provide their phone numbers on a
sign-in sheet?
It is not clear whether this would qualify as a customer inquiry is not
clear in the Rules. Therefore, 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.
My company publishes a telephone number with particular listings that
interested consumers can call to receive additional information about the
property. When the number is called, the system plays a recorded message
about the home's features. During the call, the system also captures the
telephone number of the caller. Will this type of call be considered an
“inquiry” for purposes of the exemption?
The test under the Rules is whether the consumer has a reasonable
expectation of receiving a return call. Therefore, in your recorded message
to consumers, your company should create such an expectation by informing
the consumer that they can expect a return phone call. Offering the consumer
the ability to opt out of the return call would be the recommended solution.
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 by the federal government, $500 for a lawsuit by a
state attorney general or a consumer.
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 31 days 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
