The Law

     Under the Telephone Consumer Protection Act, the Federal Communications Commission [FCC] recently established a national Do Not Call Registry. The National Do Not Call Registry is a list of phone numbers from consumers who have indicated their preference to limit the telemarketing calls they receive. Commercial telemarketers are not allowed to call a consumer if their telephone number is on the registry.

     The registry is managed by the Federal Trade Commission (FTC), the nation’s consumer protection agency. It is enforced by the FTC, the Federal Communications Commission (FCC) and state officials. Telemarketers must scrub their contact lists against the National Do Not Call Registry every 31 days and drop from their call lists the phone numbers of consumers who have newly registered.

     The law covers any plan, program or campaign to sell goods or services through phone calls. This includes calls by telemarketers who solicit consumers, often on behalf of third party sellers. It also includes sellers who are paid to provide, offer to provide, or arrange to provide goods or services to consumers.

     This legislation gives the FTC and state attorneys general law enforcement tools to combat telemarketing fraud, give consumers added privacy protections and defenses against unscrupulous telemarketers, and help consumers tell the difference between fraudulent and legitimate telemarketing.

How Real Estate Companies Must Respond to the Law
     If a seller or telemarketer can show that, as part of its routine business practice, it meets all the following requirements, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the registry. To avoid penalties, Realtors® must respond to the law as follows:

1. Have written procedures that comply with the do not call requirements
2. Train its personnel in those procedures
3. Monitor and enforce compliance with these procedures
4. Maintain records documenting a process to prevent calls to any telephone numbers that it may not call
5. Show that their process involves using a version of the National Registry from the FTC that is updated every 31 days
6. Be able to show that any call made in violation of the Do Not Call rules was the result of an error

     To avoid penalties, a Realtor® or a telemarketer acting on its behalf must establish the foregoing as part of its routine business practice. If it does, it will not be subject to civil penalties or sanctions for erroneously calling a consumer who has asked not to be called, or for erroneously calling a number on the National Registry.

Non-Compliance Penalties
     A consumer who receives a telemarketing call despite being on the registry will be able to file a complaint with the FTC, either online or by calling a toll-free number. Violators could be fined up to $11,000 per incident.

     Anyone who violates the rule is subject to civil penalties of up to $11,000 per violation. In addition, violators may be subject to nationwide injunctions that prohibit certain conduct and may be required to pay redress to injured consumers.

     A consumer may also file a complaint against Realtors® who call from their state or another state for a commercial purpose if:

• You call before 8 AM or after 9 PM; or
• You leave a message, but fail to leave a phone number that the consumer can call to sign up for your company’s specific do not call list; or
• You make a telemarketing call to someone who has previously requested not to be called; or
• You fail to identify yourself; or
• You send a pre-recorded commercial message to someone with whom you do not have an established business relationship and who has not given you permission to call