Unfortunately for real estate practitioners, the Federal Trade and Federal Communication Commissions don't have it together quite yet on the Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR), better known to most as the Do-not-call rules. We know, because the rules still need some major clarifying.

In a rush to curry voter approval in 2004, the current Administration bullied through a federal do-not-call registry based on rules proposed by the Federal Communication Commission (FCC) last fall. At the last minute, the FTC was put in charge of enforcement.

Overlooked were any considerations or exceptions to the no-call rules for industries such as the independent contractor-based real estate industry, yet the FCC managed to include generous exceptions for politicians and charities so they can continue using phones for fund-raising.

Time was not taken to address some of the very real exceptions that should be allowed,which gives rise to some interesting interpretation of the rules.

For example, according to FTC Commissioner Mozelle Thompson, as told to NAR members during a panel discussion in San Francisco in November, real estate professionals can call FSBOs for appointments even if they are on the do-not-call registry, if the brokers or agents have interested buyers.

This is well and good, but why isn't this exception clearly outlined in the rules? Why do Realtors need to learn from a panel discussion what they can and can't do? What constitutes a valid buyer? Someone who is ready to consider the FSBO home as one of many? Someone who wants to view the home immediately? Or someone who is ready to present a contract upon viewing the home?

It depends on what your definition of "is" is, as former President Clinton illustrated.

It was the FCC which proposed the do-not-call rules, and at the last minute, the FTC was given the authority to enforce the rules. But even these commissions aren't seeing eye to eye.

The FTC, for example, has an interesting exception to the do-not-call rules that the FCC doesn't have.

FTC Rules section 310.6 subsection B3 states, "Telephone calls in which the sale of goods or services or charitable solicitation is not completed, and payment or authorization of payment is not required, until after a face-to-face sales or donation presentation by the seller or charitable organization...."

This is interesting because the FCC typically oversees intrastate (within state borders) commercial issues, while the FTC oversees interstate (state-to-state) and intrastate rules. Why does this matter?

If a face-to-face meeting is to occur, then clearly out of state callers would be at a disadvantage to local callers. In other words, if you are calling to set an appointment, that means you are going to meet the prospect or have staff available to meet the prospect. If the FCC rules prevail with no exception for face-to-face meetings, it is local brokers who are hurt, and ultimately the FSBOs who may have benefitted from additional buyers for their homes.

"The FTC is charged with policing the no-call rules," explains Sorenson, "the rules of a sister agency, the FCC, and both have parallel rules, but they aren't parallel. The FTC oversees interstate (state-to-state) conduct of goods and services. Interstate is interpreted by courts very broadly. You can sell something like real estate in one state it is assumed to be for sale for all people in the state and outside the state, so that is what makes it part of interstate commerce. The FCC has always had interstate and intrastate reach. Phone lines by their nature are interstate and intrastate."

It doesn't make sense that the FTC, which doesn't govern intrastate rules would have a more reasonable "exception" to the rules than the FCC.

"If the FCC had the same exception," explains Sorenson, "a property manager could be calling on owners who live out of state for an in-state listing. Who doesn't sign a listing agreement in person?"

These questions show that there is a lot of work left to be done, at least as the rules apply to the real estate industry are concerned.

"The industry needs to lobby for the same exception that exists in the FTC rule to be included in the FCC rules," suggests Sorenson. "If that one exception were in there, then 95 percent of the listing calls to FSBOs could be made."

Whether an agent has a buyer or not.