Real Estate Brokerages Need to Review Their Do-Not-Call Policies

Written by Posted On Thursday, 21 December 2006 16:00

Realtors® around the country have been warned to get their "do not call" policies in order. The warning came in the form of an alert from the National Association of Realtors® (NAR). In California it was passed along by the state association, CAR, as well.

The occasion of all the fuss has been the practice of at least one nongovernment individual who has been testing real estate companies on their compliance with do-not-call procedures required under the federal Telephone Consumer Protection Act. What happens, according to the NAR memo, is the following.

"First, he contacts the real estate brokerage and asks that his phone number be placed on the company's internal "do not call" list. He also requests that the brokerage mail him a copy of the company's policy for maintaining its internal "do not call" list within five days. If the caller does not receive the brokerage's "do not call policy" within five days, he will threaten to file a lawsuit against the brokerage in [in this case] Minnesota state court. To avoid the lawsuit, the caller offers the brokerage the opportunity to settle the matter for around $5,000. The caller is not a lawyer."

It is true that the law requires any company that engages in telemarketing to provide a copy of its policy to a consumer upon request. The law does not specify a time period within which the company must comply. Inasmuch as the regulations give a company up to thirty days to have a consumer's name entered into its internal do-not-call records, it is probable, according to the NAR memo, "that a five day turnaround time is likely unreasonable." However, the memo goes on to add, "… the faster you send the policy in response to a request, the better your chances may be of avoiding a lawsuit."

It is a fair guess that most real estate brokerages do not even have a do-not-call policy, much less a written one, and even less, a written one that complies with the regulations. This is a wake-up call.

Every company that engages in telemarketing should have a written policy showing what it does to comply with the laws covering this activity. The company also needs to be able to demonstrate that it has implemented its procedures, and that it has a process for monitoring compliance. That is, the policy manual cannot simply be a document that sits on a shelf gathering dust.

The policy should describe how the company creates cold-calling lists, and how the company uses the do-not-call registry information to check numbers on its list. The policy should describe how the company keeps its list current by checking against the registry at least every 31 days. Also, and of particular importance in the present case, the policy should describe the procedures for complying with a consumer request to be placed on the company-specific do-not-call list.

Suppose, for example, that Ben, an agent with Aggressive Realty, engages in the practice of "cold calling" in order to solicit business. Suppose also, unlikely as it may be, that Aggressive Realty maintains an up-to-date list of local numbers that have been listed with the do-not-call registry. Now, even if Ben conscientiously consults the list, and only calls numbers that are not on it, he still must comply with a consumer request not to be called again. Moreover, if the consumer says something like, "I don't want to be called by you or your company", then there must be a procedure for Ben to add that name to a company-specific list. And there must be a procedure for all other agents in the company to access that list, and to incorporate it into their own telemarketing practices.

In California, this hullabaloo over do-not-call practices is reminiscent of the stir a few years ago when individuals were combing through real estate ads and threatening to sue companies for not complying with regulations related to advertising financing terms. That probably did more to urge companies into compliance than any pronouncements by the regulatory agencies. Similarly, we can now expect that a lot of brokerages are going to get busy shoring up, or creating anew, their do-not-call policies. The threat of a lawsuit does have a way of focusing one's attention.

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Bob Hunt

Bob Hunt is a former director of the National Association of Realtors and is author of Ethics at Work and Real Estate the Ethical Way. A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at [email protected].

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