Do Not Call Tester

From the Ohio Association of REALTORS®
Tester contacts Ohio brokerage on 'Do Not Call' policy

An individual named Ryan Swanberg has been testing various firms, including real estate brokerages and now a brokerage in Ohio, by seeking a written version of their "do not call" policies. He sent a fax to a brokerage in the Lancaster area that was easily mistaken for a solicitation which ended up in the trash, then filed a lawsuit when no response was received to his request. Another scenario...In one known case in Minnesota, Swanberg (and now there may be others) 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 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.

Do Not Call Page NAR President Pat Vredevoogd Combs has written to Federal Communications Committee Chairman Kevin Martin and other FCC officials seeking clarification on written internal do-not-call policy requirements. (12-22-06) Read more...

Legal Requirements
The caller's method is not without legal support. The Federal Communication Commission's (FCC) regulations, enacted the Telephone Consumer Protection Act of 1991 (TCPA), and states that those who engage in "any telephone solicitation to a residential telephone subscriber" must also have a "written policy, available upon demand, for maintaining a do not call list" (i.e., its company- specific do not call policy, not necessarily its policy for complying with the "Do Not Call Registry," although that policy could include this information as well).

The caller also relies on a 1996 FCC letter which states "even where a company does not solicit a particular consumer, we find nothing in our rules that limits a company's duty to disclose its policy if it does engage in telephone solicitation. Additionally, we believe that failure to provide a do not call policy is a prohibited act under the TCPA." Therefore, if the brokerage is engaged in any telemarketing, it must have a "do not call" policy which must be made available to send to those who request it from the brokerage, possibly even if the brokerage has never contacted the consumer.

The caller's five-day time frame demand is not supported by the TCPA regulations or FCC correspondence. Instead, the only existing guidance from the FCC states that the brokerage must send its policy in response to a request within a "reasonable amount of time following the consumer's request." In addition, FCC rules give a company 30 days to add a consumer's name to the company's do not call list, further demonstrating that a five-day turnaround time is likely unreasonable.

There also might be jurisdiction issues if the lawsuit is filed in Minnesota state court against an out-of-state defendant. Further investigation has discovered that the caller has filed five lawsuits in small claims court. It is not clear whether he has ever succeeded in court.

Nevertheless, the faster you send the policy in response to a request, the better your chances will be of avoiding a lawsuit.