Why are there so many different no-call rules and regulations?
The rules for the use of the national “do-not-call” registry come from both
the Federal Trade Commission (FTC) and the Federal Communications Commission
(FCC). The FTC rules apply to interstate (between states) calls, while the FCC
regulations apply to both intrastate (within the state) as well as interstate
calls, and include mobile and cell phones, not just residential telephone
numbers. REALTORS® who make calls classified as telephone solicitation calls
must comply with both the Wisconsin and the FCC rules for in-state calls, and
with the FTC rules, the FCC rules and the state rules for interstate calls.
Are REALTORS® really telemarketers making telephone solicitations that
are covered by all these rules?
Unsolicited calls to a consumer’s residence or cell phone that encourage the
purchase, rental or investment in property, goods or services are regulated. For
REALTORS®, this generally includes cold calling, calls to owners with cancelled
or expired listings, calls to FSBOs and calls to consumers referred by others.
REALTORS® who make calls classified as telephone solicitation calls must comply
with both the Wisconsin and the FCC rules for in-state calls, and with the FTC
rules, the FCC rules and the state rules for interstate calls.
Can a licensee still call a customer’s cell phone or is consent
required for that, too?
Under the federal telephone solicitation rules enacted by the FCC, cell phone
numbers are included on the national “do-not-call” registry. Therefore, signed,
written consent is needed if the cell phone number is on the national registry
and no other exception applies. Legislation to add cell phones to the Wisconsin
no-call list is also pending.
Does a FSBO ad in the paper work as permission to call the owner and
offer listing services?
No, the owner’s ad invites agents to bring buyers to the owner. It is not an
affirmative request for brokers to call and pitch their listing services.
If someone calls in while an agent is on floor time, how does the agent
get permission to call the person back and follow up with information about
properties?
The agent may verbally ask for permission to call the person back, keep a log
of verbal consents and follow up in writing. If a prospect says the agent may
call him or her back with information about certain properties, the agent should
record the person’s name, telephone number, specific consent and other
authorized contact information in a log. The agent’s conversation with the
prospect must be clear and exact, because any consent is limited to the purpose
of that request. For example, “If you would like me to keep you up to date on
any properties (in that price range, neighborhood, size, etc.), what is the best
way for me to contact you? If you want me to call you at home or on your cell
phone, the telephone no-call rules require that I get an affirmative request
from you.” (Record contact information and purpose for any requested calls to
the home in a log.) “Let me make sure that I understand: You are giving me
permission to call you at home or on your cell phone for the purpose of ____, is
that correct?” (Record purpose/limits for residential calls in a log.)
It is very helpful to get additional contact information such as work
telephone numbers, e-mail addresses, fax numbers, and mailing addresses. These
will come in handy when the agent follows up to secure a written request for
telephone calls.
What about faxing?
To send unsolicited fax advertisements about properties or services, a
REALTOR® must have express permission or an established business relationship,
and a fax number that’s provided voluntarily by the recipient or publicly
available. In addition, the fax must contain opt-out language on the first page.
The federal Junk Fax Prevention Act and rules regulate faxes advertising the
commercial availability or quality of any property, goods or services. More
information about the Fax Act is available in Legal Update 06.12, “2006
REALTOR® Highlights,” at www.wra.org/LU0612.
For further information and compliance pointers, go to NAR’s Field Guide to
Do-Not-Call, Do-Not-Fax, and Do-Not-E-Mail Laws at
www.realtor.org/libweb.nsf/pages/fg707#nofax.
What are an agent’s options for prospecting if a consumer’s home phone
number is on a no-call list?
No call doesn’t mean no contact. When a number is on one of the no call
lists, respect it and find another way to reach the consumer.
Meet them in person
- Knock on doors
- Work trade shows
- Get consent to call (in writing per federal law)
Send written correspondence
- Handwritten notes
- Newsletters
- Postcards
- Sold notices
- Just listed notices
- E-mails (subject to CAN SPAM)
- Faxes (subject to Fax Prevention Act)
- Call prospects at work
Build networks and take advantage of existing relationships. Make a list of
the people you come in contact with – your barber, your mechanic, teachers, book
club members, your manicurist, personal trainer, coaches, friends, teammates,
family members, volunteers in community activities and civic organizations, etc.
Remember to tell them what you do and ask if they are thinking of buying or
selling or if they know of anyone who is.
What if an agent sends them an e-mail instead of calling?
The federal CAN SPAM Act applies to all commercial e-mails: “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 a return e-mail address and a valid physical postal address,
a clear and conspicuous “opt-out” notice, a mechanism or active e-mail address
that the recipient may use to ask to not receive further e-mail, and a clear and
conspicuous notice that the message is an advertisement or a solicitation. More
information about CAN SPAM is available in Legal Update 04.01, “Federal
Anti-Spam Legislation,” at
www.wra.org/LU0401 and Legal Update 05.08, “Federal Laws Impacting
REALTOR® Practice,” at www.wra.org/LU0508.
Does an agent have to be registered with DATCP to make calls?
Yes, the only way to legally determine if a number is on the Wisconsin
no-call list is to register with the Department of Agriculture, Trade and
Consumer Protection (DATCP). Numbers on the federal no-call list (up to five
area codes) may be obtained free of charge from the national registry at
telemarketing.donotcall.gov.
Once both lists have been checked, cold calling can be done to any number not on
the “do-not-call” lists.
The registration fees as well as an overview of the “do-not-call” rules are
found in Legal Update 02.11, “Telephone Solicitation Rules and the No-Call
List,” at www.wra.org/LU0211. In
addition, the WRA has compiled instructions on how to access the federal
registry information sheet. See “Accessing the ‘Do-Not-Call’ Registry,”
available at www.wra.org/donotcallpdf.
Follow the safe-harbor procedures to ensure maximum liability protection under federal
law.
Compliance checklist
- Determine on a call-by-call basis, “Should I call?”
- Check office policy for calling guidelines.
- Ask, “Is it a solicitation?” If so ask, “Is the call exempt?” Don’t
disguise a call by pretending it is a survey.
- Register with the Wisconsin DATCP.
- Access the National Registry.
- Maintain a company no-call list.
- Check numbers on both registries and the company’s individual no-call
list.
- Update to maintain current lists.
Tracy Rucka is a Staff Attorney for the WRA.
Published: 7/27/2007
