The National Do-not-call Registry, managed by the Federal Trade Commission, has gone into effect despite a Colorado federal district judge's ruling that it is an unconstitutional violation of free speech (the First Amendment) to exempt charities, telephone surveyors and political organizations (whom many consider the worst solicitation offenders) while penalizing commercial entities for making calls to consumers who are on the list.

His reasoning? The spirit behind the creation of the list is to ban unwanted annoying calls, and many consumers consider calls from charities and politicians to be just as annoying as those of telemarketers. The FTC has filed an emergency motion to stay the judge's ruling, but the Federal Communications Commission did an end run around the dispute and put its own do-not-call list in force on October 1, 2003, claiming it isn't subject to the court ruling.

If the district judge's ruling prevails on appeal, Congress will have no choice but to make a constitutional amendment allowing the federal do-not-call list. Meanwhile, telemarketers had better comply or risk fines up to $11,000.

This new law has left Realtors in a quandary. First, who's really in charge of this mess, the FCC or the FTC, and will whomever prevails have a sympathetic ear to Realtors? For example, many commercial and residential Realtors accomplish sales by calling property owners and telling them that they have a buyer. They aren't selling anything, they are merely finding out if the owner is open to selling. Another issue -- are FSBOs fair game? They have their houses on the open market, but what if they are on the do-not-call list? Can a Realtor approach with a buyer or not? It is these kinds of gray areas that have Realtors as well as long-distance companies objecting to the fairness of the registry.

Companies that wish to purchase the do-not-call list can pay $25 per area code, or up to $7,375. In addition, they have to obtain periodic updates as new consumers add themselves to the list. Once listed, a consumer is protected for five years.

"It's not that telemarketers want to call people who don't want to be called," says New Bern, North Carolina Realtor Betty Willis, GRI, ABR, "That isn't the issue here. The bigger issue is having to purchase lists of the people who sign up. This can get quite expensive."

Willis explains, "There is quite a bit of cold calling done in the real estate business as well as in other businesses. I'm sure there is expense involved in maintaining the Do-No-Call-Registry, but it would be great if there were no expense involved in purchasing the lists. I am a Realtor in a top retiree relocation town, and I do call people in other areas as well as local areas. With this new law in effect, I can not call owners who are advertising their properties as for-sale-by-owner, nor can I call expired listings without purchasing these lists."

So far, the FTC has over 50 million phone numbers (not 50 million consumers as widely reported, as each consumer can register up to three phone lines) and gaining more daily. One reason the list is growing so rapidly is the ease with which consumers can sign up. Using the Internet, all they do is register their phone numbers and e-mails, and click on a confirmation e-mail that arrives in their in-boxes, and they are done. That beats filling out a card and a trip to the post office.

But the do-not-call registry won't quite work the way consumers may be expecting. While it will stop the long distance carriers from calling you during dinner to get you to switch, it will allow charities, political organizations, telephone surveyors and companies with whom you've done recent business with to call you. The FTC estimates that the do-not-call registry will only assist in eliminating about 80 percent of unwanted calls.

To make matters more confusing and unfair to telemarketers, over 27 states have do-not-call lists, and not all of those states will merge their lists with that of the FTC. Some states have exempted Realtors because they do not sell a product over the phone, but the National Do-not-call Registry offers no such exemption.

"Perhaps we Realtors can go back to the old days of door knocking," laments Willis. "Would folks rather have someone pop up at their door unexpectedly or have the phone ring? The Do-Not-Call rule is certainly affecting the real estate business."

Meanwhile, brokers such as Prudential California Realty are deciding to err on the side of caution while the federal government, courts and states battle this one out.

Prudential California Realty says it will "immediately post the Do Not Call list on its Intranet technology tool, The WebTop 3.5, which is currently used by more than 3,300 real estate agents in California, Nevada and Texas, when it is released by the FCC."

"Real estate is first and foremost about people and Prudential California Realty, which has always had a reputation of integrity, certainly respects the privacy needs of others and will voluntarily abide by their wishes," said Ed Krafchow, president of the tri-state consortium of Prudential California Realty, Prudential Nevada Realty and Prudential Texas Properties.

Don't look for your local association or franchise to purchase the list for you. Prudential California Realty is more heroic than it may appear for spending a few hundred dollars on the do-not-call list. It's taking on potentially thousands in liability.

According to one large franchisor, when asked why doesn't the franchisor buy the list and distribute it to all brokers, liability is a very real deterrent.

"A franchise organization couldn't do it because it could make the argument that to buy the list that the brokers are all part of the same system, and that means that the franchisor might be taking on liability for individual brokers and agents. If an agent called someone on the list and it wasn't inadvertent, the franchisor might be liable."

There is a break for individual Realtors like Willis -- the first five area codes are free.

Published: October 3, 2003

Use of this article without permission is a violation of federal copyright laws.

Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. For more articles by Blanche, click here.