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Who Makes the Rules Federal Do-Not-Call Rules – Simplified
First, a couple of important disclaimers: 1. Do Not Call Sentry™ is not your lawyer. The information on this website is intended to acquaint you with the sweeping scope of the federal Do-Not-Call regulations and to alert real estate professionals about the areas of exposure you need to be aware of. Check with your own legal counsel to determine your firm's compliance issues. Also, NAR members should review the excellent collection of information provided at REALTOR.org. 2. This information pertains to FEDERAL rules only. Over half the states have their own laws on this subject. The state laws are still in force, but you must comply with the stronger of the state or federal provisions. Even if your state provides an exemption for real estate under its rules, you must still comply with the stricter federal rule, which has no such exemption. Any state provisions that are stronger than the federal rules are enforceable. Your state Association of REALTORS® has likely prepared an FAQ on which state regulations, if any, will continue to apply to your business. Over time, we expect to build in state rule compliance into Do Not Call Sentry™ but it is a federal rules only system today. Who Makes the Rules – FTC and FCCTwo federal agencies -- the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) -- are involved, and a whole bunch of states.
FTC rules are geared more toward traditional telemarketing firms running sales campaigns and calling across state lines. Some real estate activities fall under that jurisdiction, but most do not.
The FCC has much broader authority under the law. The FCC rules apply to both in-state and interstate calls made to consumers in an attempt to sell a product or service. Most routine real estate calls come under these rules.
Over half of the states have their own do-not-call rules. Where state laws are in force, you must comply with the stricter of the two. What Calls are Prohibited?The broadest rule is that your agents cannot make a call to someone who has instructed anyone in your firm not to call them. The only way around this one is to secure subsequent written permission to call.
The narrower rule is that your agents may not call to solicit business from a consumer whose number appears in the National Do-Not-Call Registry.
There are three exemptions to that rule: 1. Your agents may call if a personal (non-business) relationship exists between the party called and the person calling 2. Your agents may call if a business relationship exists between the parties. A business relationship is either of the following: o A contract or transaction between the parties occurred within the preceding 18 months o The consumer initiated a request for information from your firm within the preceding 3 months 3. Your agents may call if the consumer has given your firm written permission to contact them by telephone. Examples of Real Estate CallsLet's look at some common real estate examples. Keep in mind, that the law just took effect by federal court order on October 7, 2003, and the various provisions have not been tested in the courts to see exactly where the lines between permitted and prohibited may be drawn.
In each of these examples, let's assume the target phone number is NOT on your company's Do-Not-Call list, but DOES appear on the National Do-Not-Call Registry, and you do not have on file written permission to call.
Calling FSBOs: Agents may make a call if representing a buyer for their home, because they are soliciting calls from buyers by virtue of their advertising or yard sign. You may not, however, call them to solicit a listing, or request payment of a commission, because that is an attempt to sell your services.
Calling Expireds: Agents may not call expireds to solicit listings if their phone number is on the Do-Not-Call list. You can still knock on their door or send them mail.
Calling in Response to an Inquiry: Agents may call, but only within 3 months of the consumer's request. Qualifying requests can come from any source, including email and your company Website.
Following Up on a Referral: If you receive a referral from another agent, a friend, or past client, and the consumer is on the National Do-Not-Call Registry, can you call them? A literal reading of the law says you cannot, because the consumer has not inquired of you directly. Common sense, however, suggests that if they have asked for your assistance through the other party, and they are expecting to hear from you, then they want your help and would probably not file a complaint. Be very careful in this common situation!
Calling a Farm Area: Agents may not make unsolicited calls seeking business if the consumer's phone number is on the Do-Not-Call list.
Calling Past Clients: Agents may call consumers who are on the Do-Not-Call list, seeking to sell their services, if your firm has had past business (a listing, representation agreement, contract, etc.) with them in the past 18 months, provided they haven't asked anyone in your firm not to call. How Do I Protect My Company?The federal regulators have created a Safe Harbor provision to protect firms who are trying, in good faith, to comply with the rules but make an inadvertent mistake.
Do Not Call Sentry™ is a simple, inexpensive online tool that incorporates the safe harbor provisions, and provides the documentation necessary to prove your company’s good faith efforts to comply.
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