Stay in Compliance: Understanding The Do Not Call Registry…

There is a lot of misinformation regarding the Do Not Call (DNC) rules and how they apply to real estate agents.  This isn’t surprising considering there are two federal agencies, The Federate Trade Commission (FTC) and the Federal Communications Commission (FCC) that regulate telemarketing compliance; certainly guidelines from two federal agencies can be confusing.

Real estate agents are subject to both the FTC and the FCC regulations and must comply with all of the DNC rules. 

The following post is based upon Arch’s understanding of the rules as they exist today and with respect to how agents can remain compliant when calling call-captured leads, for sale by owner and expired listings. 

DISCLAIMER:  As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel.  Further, the content is only general information, which may or may not be correct, complete or current at the time of reading.  Arch Telecom expressly disclaims all liability relating to actions taken or not taken based on any or all contents of this article.

Question: Can sales calls be made to consumers on the DNC list?

Answer:  Yes, when there is an exception.  The rules:

• When there is an "established business relationship" exception to the National DNC provisions so that an agent may call a consumer with whom it has such a relationship, even if the consumer’s number is on the Registry.
• When a consumer has given the agent express written permission to call, even if the consumer’s number is on the Registry.

Question:  What constitutes an “established business relationship”:

Answer: A relationship between an agent and a consumer based on:

• The consumer’s inquiry or call regarding a product or service offered by the agent, within the three (3) months immediately preceding the date of a sales call; or
• The consumer’s purchase, rental, or lease of the agent’s goods or services or a financial transaction between the consumer and seller, within the eighteen (18) months immediately preceding the date of a sales call.

Question:  If a third-party pays for an agents services, can the third party make telemarketing calls relying on the business relationship exemption? 

Answer:  A third-party may make telemarketing calls on behalf of the primary business, about the products and services the customer inquired about.  However, they may not make telemarketing to consumers on the DNC list regarding unrelated products and services.

Question: Is it permissible to call back leads generated by call capture?

Answer:  Yes it is legal and acceptable business behavior subject to certain restrictions.  Call capture is intended to generate business relationships with prospects by providing a service to allow potential customers to request information 24 hours a day and also documents the inquiry.  This establishes the “business relationship” and therefore can safely be called back even when on the DNC.  The spirit and language of the regulation make it clear that the call is allowable AS LONG AS the resulting sales call is in regards to the services the consumer inquired about.

Question:  Can an agent make calls to for sale by owners on the DNC registry?

Answer: Only when the agent is calling to discuss the potential sale to their represented buyer.  In a February ruling, the FCC, despite significant lobbying by the NAR, denied the petition to make Realtors® exempt from the DNC rules with respect to for sale by owners. 

Question:  Can an agent make calls to for expired listings on the DNC registry?

Answer: In the same February ruling, the DNC rules only allow the agent to call his own expired listings for up to 18 months following expiration if the seller is listed on the DNC.

Question:  Are there other compliance issues to be aware of?

Answer:  Yes.  Beyond DNC issues, any sales calls are limited to between 8am and 9PM, and the seller must promptly identify themselves and the nature of the call.  For more information, visit the FTC site at:  http://www.ftc.gov/bcp/edu/pubs/consumer/telemarketing/tel13.shtm

In summary, any business selling to consumers must remain aware and compliant with the spirit and specific regulations of the National DNC list as well as the Telemarketing Sales Rule and state-specific regulations.  Call Capture, by helping to generate customer inquiries and business relationships, can effectively increase an agent’s ability to appropriately market their products and services.  Additionally Arch will provide fsbo and expired lists (in some areas) and scrub all lists, expired, fsbo or sphere of influence against the DNC.  For information please visit www.archagent.com