The Federal Communications Commission (FCC) recently issued an order that clarifies how Do Not Call rules affect the telemarketing practices of real estate agents.

Most phone users seem to be aware that the Do Not Call registry went into effect in October, 2003. Since then, more than fifty million Americans have registered their numbers and have enjoyed dinner hours without incessant telephone interruptions by all manner of business solicitations.

Always, though, rules need interpretations; and it didn't take long for requests for interpretations to begin pouring into the FCC. Some of those had to do with real estate industry practices. These were related to two well-publicized exceptions to the general prohibition against calling people who do not wish to receive calls. Those exceptions were the business-to-business exception, and the existing business relationship exception.

Business numbers are not covered by the Do Not Call rules. I can register my personal phone numbers, even my cell phone number, but I am not supposed to register my business number. Also, if I have an existing business relationship with some entity -- suppose I just bought a television set at an appliance store -- that entity can make calls to me for up to eighteen months after the business transaction, or up to three months after I have just made an inquiry. (Note, though, that if I say, "Don't call me anymore," they must comply with my wishes in that regard.)

Consider, now, the real estate questions.

1. Suppose that someone has offered his home for sale "by owner." Suppose also that his name is on the Do Not Call list. Can a real estate agent call that person? Arguably, the "for sale by owner" is engaged in the business of selling his house, and thus should fall within the business-to-business exemption to the Do Not Call rules.

2. Alternatively, consider the case of a person who has had his home listed on the multiple listing system (MLS) with a real estate broker, and whose listing has now expired. Even if his number were on the registry, during the three-month period (or however long it was) that the house was listed, he could be called by any MLS member to show or preview the home. It could be argued that during that three-month period, the prospective seller not only had a business relationship with the listing broker, but also with every other MLS member to whom had been made a cooperative offer to share compensation. Shouldn't, then, each member be covered by the three-month exemption?

In the fall of 2004, the National Association of Realtors (NAR) filed petitions with the FCC seeking clarification as to the applicability of the Do Not Call rules to "for sale by owners" and to those whose listing had recently expired. The recent order, released Feb. 18 of this year, provides that clarification.

1. A real estate agent may call a "for sale by owner" whose number is on the registry if, and only if, the agent is representing a prospective buyer for the property. Agents may not call if their purpose is immediately or ultimately to solicit a listing of the property. Thus an agent would be prohibited from calling "just to provide some useful information" if that call were part of a campaign of contacts designed ultimately to culminate in a listing.

2. If the phone number of a person whose listing has just, or recently, expired is on the registry, real estate agents are prohibited from calling that number.

The rulings may not be what NAR members wanted to hear, but at least clarification has been achieved. And that is good, because violators of the Do Not Call rules may be subject to fines up to $11,000 per incident.