Based upon the current information, real estate agencies and agents need to comply with the National Do Not Call Registry. Under these federal rules, it’s easy to make a mistake if you are not prepared. The fines associated with violations range up to $11,000 per occurrence. Not everyone is on the do not call list, but you can avoid the sting of these fines with knowledge and understanding of how these laws function.

It’s very easy to accidentally have a violation. If you call a FSBO, a referral or follow-up with an inquiry you could be exposed. There are plenty of situations which may not seem like telemarketing, but if you mention anything about your services, you fit the FCC definition of a telemarketer. Whether you meet face-to-face to consummate a sale is not relevant to their definition. Below is the definition straight from the FCC rules:

The term telemarketer means the person or entity that initiates a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

Think about what you say to a referral, a FSBO or an expired listing. Do you mention your services? Do you mention anything about a property? Is your purpose to encourage the purchase, rental or investment in your services or a property?

That’s telemarketing according to the FCC.

From the hundreds of e-mails I have received, it has become clear that there are some serious misunderstandings about how the National Do Not Call List will impact the residential real estate business.

Over a decade ago, the Telephone Consumer Protection Act (TCPA) was the first federal regulation of telemarketing and there were wild rumors, just as there are now with the National Do Not Call Registry. Having dealt with these laws and managing compliance for over a decade, I believe I can provide some clarity.

First, a few solid facts about the National Do Not Call List:

• Two federal agencies; the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) with two laws and two sets of rules have teamed up to enforce the National Do Not Call List rules.

• The FTC enforces the Telemarketing and Consumer Fraud and Abuse Prevention Act (Rule 310) and the FCC has the Telephone Consumer Protection Act (TCPA).

• The general exemption for the real estate business was removed in the last moments of working out these enforcement rules.

• The National Do Not Call list will be enforced on interstate (State-to-State) as well as intrastate (In-State) calls.

• The FTC web site states the fines are $11,000 per incident; the FCC also has fines starting at $500 and up into the millions for multiple offenses.

• Legal compliance is required in two months!

The final rules have been published in the Federal Registry, they will take effect October 1, 2003. Again, there are no protections for the real estate Industry. As I see it, there are three ways this could change:

1. These agencies change their minds and allow a real estate exemption that they recently decided to remove, neither of which is likely or politically popular.

2. A federal court case prompts a federal judge to place an injunction on the National Do Not Call, also not very politically popular.

3. Literally, an Act of Congress could pass a law stopping the National Do Not Call - again, not very politically popular.

Barring one of these three things happening … in two month's time, compliance is a reality. Many believe that this only affects agents making many calls or cold calls. This is not true. Here are some examples on how this will affect you:

• I can call FSBOs if they advertise – WRONG!

  There are some states like Florida and Wyoming that exempt real estate professionals from their state Do Not Call laws, when the property is advertised. With the national list, there is no such exemption. If you call a FSBO and they are on the national Do Not Call List, you are exposed to being fined, because when you call and offer your services, you are making a solicitation as defined by the FCC rules.

• I don’t prospect with the telephone … Really? Do you …
  
  
  1. Call a person who was a referral?
  2. Call someone to whom you sent information five months ago?
  3. Call an expired listing?
  4. Call a prospect you don’t already know?

All of these calls fit the definition of telemarketing.

Keep in mind that many situations do not apply when you call the people who are not on the list. The key is to avoid calling those on the National Do Not Call list. Provided you are courteous and professional, you call anyone of the 80 million people who are not on the Do Not Call list, with no problems.

The National Do Not Call Registry doesn’t concern you … if you’re only licensed to sell properties on Fantasy Island!

Published: August 15, 2003

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