'Do-Not-Call' Registry - Federal

Federal Court blocks implementation of Do-Not-Call rule but NAR advises REALTORS® should maintain Oct. 1 as effective date for compliance On 9/24/03, the U.S. District Court for the Western District of Oklahoma ruled that the FTC exceeded its authority in creating the National Do-Not-Call Registry. This decision is in response to the lawsuit filed by the Direct Marketing Association challenging the FTC's Do-Not-Call Registry.  An appeal of the Court's decision is expected, but it appears certain at this time that the rule will not go into effect as planned. NAR is currently assessing the full impact of this decision. The decision states that the FTC did not have the proper statutory authority to create the Do-Not-Call registry.  However, the Federal Communications Commission (FCC) clearly does have the proper statutory authority, since Congress directed it to consider creating a national Do-Not-Call registry in 1991 via the Telephone Consumer Protection Act (TCPA). While it appears the FCC still has the ability to enforce the registry, Congress approved funding for administration of the national list only for the FTC. Until we learn more from the agencies and counsel, please assume the Oct 1 effective date for compliance purposes is still in place.  NAR is still waiting for clarification from the FTC regarding how the rule, if implemented, would limit the ability of real estate licensees to make calls to expired listings, FSBOs, open house visitors, referrals, and others who may be included on the Do-Not-Call list.  We will keep you advised of future developments.

October 1 - Enforcement begins The FTC established October 1, 2003 as the effective date for compliance.  Fines associated with non-compliance range up to $11,000 per occurrence. September 2 - Access to the registry Access to the registry was made available on September 2.  The annual cost for organizations to access the registry will be $25 per area code with a maximum annual fee of $7,375 to access telephone numbers for the entire country, including U.S. territories. Access the first five area codes of data will be free of charge. To access the registry, visit www.telemarketing.donotcall.gov. The first time you access the registry, you must provide identifying information about you and your company. The only consumer information available from the registry is telephone numbers sorted by area code. After you have accessed the registry the first time, you’ll have the option of downloading only changes in the data that have occurred since the last time you accessed the registry.

In July, the FTC issued new rules for its federal Do Not Call Registry to include calls made within the state. Prior to this surprise announcement, all information received was that it was to apply only to calls made that crossed state borders.  As a result, all Central Ohio real estate professionals now must comply with the requirements of the National Do-Not-Call Registry. Earlier NAR communications and policy briefs maintained that unless real estate licensees were calling across state lines, compliance with the federal law was not necessary and instructed members to adhere to any state law requirements. This latest action by the FCC reverses this interpretation.

Please note:  This new information contradicts what was printed in the July/August 2003 In Contract magazine as the announcement came long after press time.

Based upon the current information, real estate agencies and agents need to comply with the National Do Not Call Registry.

According the the FCC definition, you will be telemarketing if you call a FSBO, referral or expired listing and

• mention your services
• mention anything about a property
• encourage the purchase, rental or investment in your services or a property 

For more information, visit the Do Not Call web site.  www.ftc.gov/donotcall

The Federal Registry

To register by phone, consumers will need to call 1-888-382-1222 from the number they wish to register.

Names and telephone numbers will remain on the no-call list for five years. After that, consumers who wanted to remain on the registry will have to re-register.

 

Background

Last December, the FTC voted to create a national “Do Not Call” Registry.  Although most of the rule’s components became effective immediately, the national “do not call” registry included in the Telemarketing Sales Rule (TSR) was on hold pending approval of a Congressional FTC appropriations bill.

At that time, Central Ohio real estate brokers and agents who generate business by cold-calling for-sale-by-owners, expired for-sale listings and buyers and sellers with whom the agent has had a prior relationship did not need to be concerned by these new federal restrictions as the federal rule at that time applied only to telemarketing calls that crossed state lines.

However, REALTORS® from many other parts of the country would have been affected so NAR lobbied the FTC to extend the current exemption for calls made where the sale is not completed until after a face-to-face presentation to the provisions of the national registry, but this exemption was repealed.

The new rule contains the following narrowly tailored exemptions for existing business relationships, which is helpful to the real estate industry:

1. a telemarketer may call a consumer with whom it has an established business relationship for up to 18 months after the consumer’s last purchase, delivery, or payment, even if the consumer’s name is on the registry;
2. a telemarketer may call a consumer for up to 3 months after the consumer makes an inquiry to the company; and
3. a telemarketer may call a consumer who has provided the company written permission to call.

In addition to establishing the national “do not call” registry, the amended TSR calls for other changes, including limiting abandoned calls, restricting unauthorized billing and requiring telemarketers to transmit Caller ID information.

In late March, the Federal Trade Commission said it would issue a revised proposal to amend the Telemarketing Sales Rule, adding a new section that would impose fees on entities accessing the national “do-not-call” registry.

What provisions remain in the TSR?
The following provisions of the TSR have not changed:

• Telemarketers and sellers still may call consumers only between 8 a.m. and 9 p.m.
• Telemarketers still must promptly identify themselves as a seller and explain that they're making a sales call before pitching a product or service. 
• Telemarketers still must disclose all material information about the goods or services they are offering and the terms of the sale. Misrepresenting any terms or conditions of the sale is still prohibited.

For more information, visit the FTC’s “Do Not Call” web site at www.ftc.gov/donotcall.

Note:  Ohio has no 'Do-Not-Call' law currently, however, S.B. 28 has passed the Senate and is currently in the House for consideration.  Click here for more info on S.B. 28.