Madison, WI - Telephone Solicitation Law
FTC and FCC Federal Regulation
The Federal Trade Commission (FTC) regulates both interstate telephone
solicitations and the National Do-Not-Call Registry, while the Federal
Communications Commission (FCC) regulates interstate calls, and also intrastate
calls when state law is not more restrictive (Wisconsin law is regarded as more
restrictive).
Calls to a consumer’s residence or cell phone that encourage purchase, rental
or investment in property, goods or services are regulated. For REALTORS® this
includes cold calling, calls to owners with cancelled or expired listings,
calls to FSBOs and calls to consumers referred by others. REALTORS® placing
these calls should check whether the phone number is on the National Registry,
if an exception does not apply, in order to avoid potential liability. The
exceptions to the federal Do-Not-Call rules include established business
relationships, prior written permission and personal relationships.
Penalties for violating federal No-Call law include fines of up to $11,000
per violation, private actions seeking damages of $500 plus possible attorneys
fees and costs, and DRL disciplinary actions.
Internal Do-Not-Call Lists
Other regulations enacted pursuant to the Telephone Consumer Protection Act
of 1991 include provisions requiring those who engage in any telephone
solicitation to home telephone numbers to maintain a company-specific or
internal Do-Not-Call list (47 CFR 64.1200). Every such company must maintain a
list of persons who ask not to receive telemarketing calls and also must have a
written policy, “available upon demand,” explaining the company’s procedures
for maintaining this list. The rule may apply even if the company does not do
cold calling or traditional telemarketing. Any telephone call where a property
or service is advertised or offered to the other party may be enough to pull a
broker into the category of a telemarketer.
This rule is discussed on page 4 of Legal Update 03.08, “Federal ‘Do Not
Call’ and ‘Do Not Fax’ Regulations,” online at
www.wra.org/LU0308. Also see “Creating an Office Policy for DNC Rules” on
the NAR Web site at
www.realtor.org/letterlw.nsf/pages/1203officepolicy.
See NAR’s “Field Guide to Anti-Solicitation Laws: Do-Not-Call, Do-Not-Fax,
and Do-Not-E-mail” at
www.realtor.org/libweb.nsf/pages/fg707 for additional information and
compliance tools.
DATCP Telephone Solicitation Rules
The Department of Agriculture, Trade and Consumer Protection (DATCP)
defines a “telephone solicitation” as an unsolicited telephone call that
encourages the consumer to purchase property, goods or services, or a call that
is part of a plan or scheme to encourage the consumer to buy property, goods or
services. These “telephone solicitation” calls include traditional
telemarketing activity and calls a REALTOR® makes to his or her clients or
customers regarding transactions. No agent can legally make a telephone
solicitation call to a Wisconsin residence unless the broker is registered with
the DATCP or unless the purpose of the call is exempt. For instance, a call
made in response to the consumer’s affirmative request for that call, or a
telephone call to a current client, is exempt. For a detailed discussion of the
rules and exemptions, see pages 3-6 of the July 2004 Legal Update, “Legal
Action Issues Update,” online at
www.wra.org/LU0407.
Brokers who allow or require cold calling need to comply with the DATCP’s
telephone solicitation registration requirements and fees. If a broker/company
is registered with the DATCP and pays its fees, then the agents can make
telephone solicitation calls as long as the telephone numbers called are not on
the Do-Not-Call list.
REALTOR® Resource Page – Telemarketing Solicitation Rules & the No-Call
List. See the Telemarketing Solicitation Rules & the No-Call List
REALTOR® Resource page at www.wra.org/nocall for additional federal and
Wisconsin No-Call information.
FTC CAN-SPAM Rules
The federal CAN-SPAM Act applies to all solicited and unsolicited
commercial e-mails, defined as “any electronic mail message the primary purpose
of which is the commercial advertisement or promotion of a commercial product
or service.” This includes e-mails that promote or sell a product or service
for a fee, such as REALTOR® e-mails offering properties or brokerage services.
CAN-SPAM requires all commercial e-mails to include these elements:
- A legitimate return e-mail address and a valid physical postal address.
- A clear and conspicuous notice of the recipient’s opportunity to “opt out”
of any future commercial e-mail.
- A mechanism or an active e-mail address that the recipient may use to ask
to not receive further e-mail.
- A clear and conspicuous notice that the message is an advertisement or a
solicitation.
- Clear notice in the subject heading if a message includes pornographic or
sexual content.
CAN-SPAM Rules for Wireless Devices
REALTORS® who send commercial e-mails to wireless devices such as PDAs,
pagers and cell phones must first check the FCC’s list of wireless domain
names. The FCC rules for mobile services commercial messages (MSCM) impose a
$250 fine for each commercial e-mail sent to any domain name on the list absent
express prior permission from the MSCM recipient. Consent can be obtained
verbally or in writing.
For additional CAN-SPAM information, see the February 2006 Legal Update,
“Real Estate Advertising,” online at
www.wra.org/LU0602.
FCC Fax Legislation
To send an unsolicited fax advertising the commercial availability or quality
of any property, goods or services, REALTORS® must have permission (written,
electronic or verbal) or meet the following requirements from the Junk Fax
Prevention Act:
Established Business Relationship (EBR)
An EBR is a prior or existing relationship formed by voluntary two-way
communication between a person or entity (sender) and a residential or business
subscriber (recipient) – with or without consideration – on the basis of an
inquiry, application, purchase or transaction by the recipient regarding
products or services offered by the sender, provided the relationship has not
been previously terminated by either party. An EBR exists with former clients
and customers or any consumer who inquires about brokerage services. REALTORS®
need an EBR to send faxes about listings to other brokerages, but an EBR will
be present with other brokerages who have been in cooperative transactions with
the sender or who have inquired (e-mail, phone, etc.) about any of the sender’s
listings. There are no time limits for an EBR.
Voluntary Receipt of the Recipient’s Fax Number
The EBR was in existence and the sender had the recipient’s fax number as of
July 9, 2005; or the fax number was provided voluntarily by the recipient (via
business card, letterhead, fax cover sheet or phone) or is publicly available
in a published directory, advertisement or Web site.
Opt Out on First Page of Faxes
Clear and conspicuous opt-out instructions must appear on the cover sheet
or first page of the fax indicating that the recipient has the right to opt out
of future unsolicited fax advertisements. The opt-out message must provide (1)
a domestic telephone number and fax number where the recipient may send an
opt-out request and (2) a cost-free means for opt outs if the phone and fax
numbers involve a charge. A cost-free opt-out mechanism includes a local or
toll-free telephone number, an e-mail address or a Web site. The sender’s
failure to comply within 30 days is illegal.
The penalties for violating the federal fax law are $500 per facsimile and
treble damages may be imposed for willful violations.
- REALTOR® Resources Page – FCC Fax Regulations. See the FCC
Fax Regulations REALTOR® Resource page at
www.wra.org/faxregs for additional do not fax information.
- Wisconsin Real Estate Magazine. See “New FCC Fax Rules
Clarify Junk Fax Law” in the September 2006 edition at
news.wra.org/story.asp?a=551.
Debbi Conrad is Director of Legal Affairs for the WRA.
Published: 12/14/2006
