I was having a discussion with an agent regarding dos and don'ts of cold calling and ran across this FAQ list on a database that appears to have come from the Illinois Association of Realtors Hotline. It looks dated from some of the information, but is information that is still valid and applicable if you are considering the option of cold calling.
1. What is the Do Not Call Registry?
The Do Not Call Registry is a list of residential telephone numbers available through the Federal Trade Commission (FTC) Web site that cannot be called "for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." As of the writing of these questions and answers, the number of phone numbers in the Do Not Call Registry is reported to be over 70 million.
2. Do the do-not-call rules prohibit cold-calling?
No, the rules only prohibit cold-calling or telemarketing to phone numbers listed on the Do Not Call Registry.
3. Do the do-not-call rules apply to real estate brokerage businesses?
Yes, both to calls to phone numbers inside the state of Illinois and calls to phone numbers outside of the state of Illinois.
4. What happened to the exemption in Illinois for in-state calls by real estate brokerage companies and licensees?
The Federal Communications Commission (FCC) preempted the Illinois statute in rules published on July 3, 2003.
5. What kinds of telephone calls are covered by the do-not-call rules?
Any telephone call to a residential telephone subscriber for the purpose of encouraging the use of the services of a real estate brokerage company or its sales agents or the purchase, rental or investment in any real property or inventory of the real estate brokerage company.
6. When did the do-not-call rules and registry become effective?
The do-not-call rules and registry became effective October 1, 2003.
7. Tell me a little bit more about the Do Not Call Registry and how you access it.
The National Do Not Call Registry is continually updated by the FTC. The Do Not Call Registry is available through the FTC Web site. To get the list, go to https://telemarketing.donotcall.gov/ Registration on the Do Not Call Registry of a phone number is effective for five years. The numbers on the list are available by area code and five area codes can be obtained at no charge. There is a $56 charge per area code thereafter to a maximum annual fee of $15,400. You can also look up individual phone numbers free of charge on a FTC Internet page. (NOTE: According to a May 1, 2006 notice from the FTC, it plans to increase the rate it charges businesses to access its Do Not Call Registry to $62 per area code from $56. For access to the entire registry, the fee would increase to $17,050 from $15,400. Businesses would retain the ability to access up to five area codes without charge.)
8. Can a real estate brokerage company obtain one list for all of its agents?
Yes, a real estate brokerage company can obtain a unique identifier or account number, which can be provided to its agents. All of its agents can then access the Do Not Call Registry using that account number.
9. Do the do-not-call rules apply to calls to businesses?
No, the do-not-call rules only apply to residential telephone subscribers who put their telephone numbers, including cell phone numbers, on the list.
10. Are there any exemptions to the prohibition on not calling telephone numbers on the Do Not Call Registry?
Yes, there are several exemptions. The primary exemption is what is called the "established business relationship" (EBR) exemption. The established business relationship has two parts. The first part is an exemption for a period of 18 months from the date of the last payment or transaction with the company. The second part is that there is an exemption for a period of three months after an inquiry from a consumer concerning a property offered by the real estate brokerage company or the use of the services of the real estate brokerage company.
Another exemption is if you have been granted express permission to call. This permission must be in writing and must list the phone number or numbers that can be called. The last exemption would be for calls to "personal acquaintances." Personal acquaintances are defined as "any family member, friend, or acquaintance of the person making the call." Past customers may become "personal acquaintances." However, to say all past customers are "personal acquaintances" and, thus, fall under this exemption would not be accurate! Remember, if challenged you will have to prove the exemption exists.
Please note that any of these exemptions can be terminated by the consumer specifically requesting that no further calls be made to the consumer. This is true even if the consumer continues to work with you or use your brokerage services. If challenged as to whether an exemption applies, the FCC has indicated the caller will need to prove the exemption exists by clear and convincing evidence.
11. Do the do-not-call rules deal only with telephone numbers to which calls cannot be made?
No, the rules also deal with what you must do if you are going to cold-call or telemarket to phone numbers not on the Do Not Call Registry.
12. How do I comply with the do-not-call rules?
First, your company must decide whether it or any of its agents will engage in cold-calling. Whether you engage in cold-calling or not, you must have an office policy on do-not-call compliance. If you do not have an office policy in place, you would not have any defense should anyone complain. Get IAR's sample office policy in pdf format.
13. What if our company or some of its licensees would like to continue to cold call or telemarket? What do we need to do then?
You will need to obtain a copy of the phone numbers on the Do Not Call Registry in the area codes that you will be calling. You may not call any of those numbers unless an exemption applies. Your list must be updated every 31 days from the Federal Trade Commission Web site. You are required to put into place a written policy of procedures for compliance with the do-not-call rules. Individuals who might be making cold calls or telemarketing must be trained to comply with the do-not-call rules and your procedures. You must also maintain a list or record of those callers contacted who have requested that they not be called again in the future. Requests for no future calls from individuals whose phone numbers are not on the Do Not Call Registry must be honored for a period of five years. Cold calls may be made only during the hours of 8:00 a.m. to 9:00 p.m., local time at the location where the call is received. There are special rules concerning artificial messages or automatic dialers, which you would need to review separately. All information provided must be truthful and the caller cannot mask the location or identity of the caller.
14. How will the do-not-call rules be enforced?
There will be several mechanisms for enforcement of rules. The first is that there could be a fine of up to $11,000 per violation. These fines would be imposed by the regulatory agency, the Federal Commerce Commission, or Federal Trade Commission based upon complaints from consumers. In addition, litigation could be commenced by the Attorney General of the State of Illinois for violations of the rules or individuals could bring a private lawsuit if they have received calls twice in a 12-month period from the same company.
15. What if we accidentally make a cold call to someone on the Do Not Call Registry?
There are provisions that will excuse you from a call made in error if you follow the procedures described in question number 13.
16. Should a real estate brokerage company adopt a policy with regards to cold-calling or should this be left up to individual sponsored licensees?
A real estate brokerage company should adopt a policy in regards to whether cold-calling will be allowed by its sponsored licensees. The way the do-not-call rules are written, it appears that the ultimate liability for violation of the rules belongs to the real estate brokerage company. In addition, the private right of action is based upon two calls within a twelve-month period from the same company. Thus, the policy should be uniform throughout the real estate brokerage company with regards to whether there will be cold calling and, if so, how it will be done.
17. Do the do-not-call rules apply to calls made to FSBOs?
Yes and no. Yes, the do-not-call rules would prohibit a real estate licensee from calling a FSBO Seller for the purpose of trying to obtain a listing or otherwise do business with that Seller if that Seller's phone number is listed on the Do Not Call Registry. However, if the real estate licensee were calling on behalf of a Buyer-Client who is interested in the property, there would appear to be no prohibition under the do-not-call rules to calling the FSBO Seller concerning the interest of the prospective Buyer. However, the real estate licensee must limit their discussion to the interest of the Buyer-Client and not use the call for trying to solicit a listing of the property.
18. Can I call individuals who come to my open house and sign in on a guest register. Can we use this guest register as a basis for calling these individuals?
You cannot call the individuals who sign the guest register if their phone numbers appear on the Do Not Call Registry unless the guest register specifically seeks permission to call the guest and the guest agrees to allow, in writing, for a call from the real estate licensee indicating the phone number or numbers that can be called.
19. My company provides a service by which consumers can call a phone number (sometimes an 800 number) to obtain information about properties that we have listed. This service captures the phone numbers of those individuals who have called and we would like to be able to call those numbers. Do the do-not-call rules prohibit such an activity?
Yes, the do-not-call rules would prohibit such an activity as to those phone numbers that appear on the Do Not Call Registry. If the telephone numbers do not appear on the Do Not Call Registry, then you may call those numbers. Typically, a service like this does not give the caller an indication that he or she will be called back nor that their information will be captured.
20. Sales agents in our office often call Sellers from expired listings of other offices to see if we can list those properties. How do the do-not-call rules impact that practice?
If the phone number of the Seller is on the Do Not Call Registry you will not be able to call them unless one of the exemptions applies.
21. Some of our sponsored licensees have Virtual Office Web Sites (VOWs). Can those sponsored licensees, or their representatives, telephone those individuals who have registered on their Virtual Office Web Site (VOW)?
If the telephone number of the user of the VOW is not on the Do Not Call Registry, then that phone number may certainly be called. However, assuming that the phone number is on the Do Not Call Registry, the best recommendation would be not to call that phone number unless permission is specifically granted by the person registering for the VOW. Express permission can be granted electronically, and this should be sufficient. Should the user of the VOW sign some type of a representation agreement to be represented by your sales agent who has the VOW, then there would be an existing business relationship which would permit a call from the agent to the user of the VOW. However, if there is no client relationship the question will be whether accessing the VOW constitutes an inquiry concerning the services of the agent and properties available through the agent. If accessing the VOW constitutes such an inquiry, then there would be an exemption for a period of three months after that inquiry during which the agent could call the user of the VOW. However, until clarified, the better practice is to obtain specific permission from the user of the VOW--perhaps through an "opt-in" or the answering of a specific question--to call the user at a specified phone number1. Remember, the exemption provided by the existing business relationship can be terminated by a user requesting that no calls be made to that user. This is true notwithstanding the fact that the user of the VOW may continue to use that VOW even after they have indicated they do not want any calls from your sales agent.
22. Can we call visitors to our office Web site if their phone numbers are listed on the Do Not Call Registry?
No, not unless an exemption applies and review of a Web site would probably be considered as reviewing advertising and not an inquiry concerning the services or products of your company.
23. Do the do-not-call rules impact any other kinds of communications besides telephone calls?
Currently the do-not-call rules do not impact any other kind of communication other than those by telephone call. Thus, e-mails, facsimiles, and communications through the United States mail or other delivery service are not affected by the do-not-call rules. There is legislation affecting "no fax" principles. For information on that, visit Do Not Fax resources. Note there are rules that regulate unsolicited e-mails. Link below for information on compliance with state and federal commercial e-mail legislation.
24. Do we have to register if we have a policy in our office that does not allow cold-calling?
Upon review of information published by the Federal Trade Commission (FTC), all sellers or telemarketers who make calls on behalf of sellers could be subject to fines for violating the do-not-call rules if they do not register for their area code(s) and pay any applicable fee. In other words, if a seller/telemarketer were to make a "cold call" to a person who is not on the Do Not Call Registry and for which no exemption applies, the seller/telemarketer could be subject to fines for each call made simply because they have not registered with FTC to access the DNC list. Yes, you read this correctly. According to the FTC, if you are a seller or a telemarketer, you must pay the fee (or at least register for your area code(s)), even if you never call a person who is on the list. The FTC says the collection of fees is essential in order to support maintenance of the Do Not Call Registry.