The Best of the Legal Hotline: No Call, Not No Contact


 Tracy Rucka  |    July 27, 2007
on_phone.jpg

Why are there so many different no-call rules and regulations?

The rules for the use of the national ‚Äúdo-not-call‚ÄĚ registry come from both the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC). The FTC rules apply to interstate (between states) calls, while the FCC regulations apply to both intrastate (within the state) as well as interstate calls, and include mobile and cell phones, not just residential telephone numbers. REALTORS¬ģ who make calls classified as telephone solicitation calls must comply with both the Wisconsin and the FCC rules for in-state calls, and with the FTC rules, the FCC rules and the state rules for interstate calls.

Are REALTORS¬ģ really telemarketers making telephone solicitations that are covered by all these rules?

Unsolicited calls to a consumer‚Äôs residence or cell phone that encourage the purchase, rental or investment in property, goods or services are regulated. For REALTORS¬ģ, this generally includes cold calling, calls to owners with cancelled or expired listings, calls to FSBOs and calls to consumers referred by others. REALTORS¬ģ who make calls classified as telephone solicitation calls must comply with both the Wisconsin and the FCC rules for in-state calls, and with the FTC rules, the FCC rules and the state rules for interstate calls.

Can a licensee still call a customer’s cell phone or is consent required for that, too?

Under the federal telephone solicitation rules enacted by the FCC, cell phone numbers are included on the national ‚Äúdo-not-call‚ÄĚ registry. Therefore, signed, written consent is needed if the cell phone number is on the national registry and no other exception applies. Legislation to add cell phones to the Wisconsin no-call list is also pending.

Does a FSBO ad in the paper work as permission to call the owner and offer listing services?

No, the owner’s ad invites agents to bring buyers to the owner. It is not an affirmative request for brokers to call and pitch their listing services.

If someone calls in while an agent is on floor time, how does the agent get permission to call the person back and follow up with information about properties?

The agent may verbally ask for permission to call the person back, keep a log of verbal consents and follow up in writing. If a prospect says the agent may call him or her back with information about certain properties, the agent should record the person‚Äôs name, telephone number, specific consent and other authorized contact information in a log. The agent‚Äôs conversation with the prospect must be clear and exact, because any consent is limited to the purpose of that request. For example, ‚ÄúIf you would like me to keep you up to date on any properties (in that price range, neighborhood, size, etc.), what is the best way for me to contact you? If you want me to call you at home or on your cell phone, the telephone no-call rules require that I get an affirmative request from you.‚ÄĚ (Record contact information and purpose for any requested calls to the home in a log.) ‚ÄúLet me make sure that I understand: You are giving me permission to call you at home or on your cell phone for the purpose of ____, is that correct?‚ÄĚ (Record purpose/limits for residential calls in a log.)

It is very helpful to get additional contact information such as work telephone numbers, email addresses, fax numbers, and mailing addresses. These will come in handy when the agent follows up to secure a written request for telephone calls.

What about faxing?

To send unsolicited fax advertisements about properties or services, a REALTOR¬ģ must have express permission or an established business relationship, and a fax number that‚Äôs provided voluntarily by the recipient or publicly available. In addition, the fax must contain opt-out language on the first page. The federal Junk Fax Prevention Act and rules regulate faxes advertising the commercial availability or quality of any property, goods or services. More information about the Fax Act is available in Legal Update 06.12, ‚Äú2006 REALTOR¬ģ Highlights,‚ÄĚ at www.wra.org/LU0612. For further information and compliance pointers, go to NAR‚Äôs Field Guide to Do-Not-Call, Do-Not-Fax, and Do-Not-Email Laws at www.realtor.org/libweb.nsf/pages/fg707#nofax.

What are an agent’s options for prospecting if a consumer’s home phone number is on a no-call list?

No call doesn’t mean no contact. When a number is on one of the no call lists, respect it and find another way to reach the consumer.

Meet them in person

  • Knock on doors
  • Work trade shows
  • Get consent to call (in writing per federal law)

Send written correspondence

  • Handwritten notes
  • Newsletters
  • Postcards
  • Sold notices
  • Just listed notices
  • Emails (subject to CAN-SPAM)
  • Faxes (subject to Fax Prevention Act)
  • Call prospects at work

Build networks and take advantage of existing relationships. Make a list of the people you come in contact with ‚ÄĒ your barber, your mechanic, teachers, book club members, your manicurist, personal trainer, coaches, friends, teammates, family members, volunteers in community activities and civic organizations, etc. Remember to tell them what you do and ask if they are thinking of buying or selling or if they know of anyone who is.

What if an agent sends them an email instead of calling?

The federal CAN-SPAM Act applies to all commercial emails: ‚Äúany electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.‚ÄĚ This includes emails that promote or sell a product or service for a fee, such as REALTOR¬ģ emails offering properties or brokerage services. CAN-SPAM requires all commercial emails to include a return email address and a valid physical postal address, a clear and conspicuous ‚Äúopt-out‚ÄĚ notice, a mechanism or active email address that the recipient may use to ask to not receive further email, and a clear and conspicuous notice that the message is an advertisement or a solicitation. More information about CAN-SPAM is available in Legal Update 04.01, ‚ÄúFederal Anti-Spam Legislation,‚ÄĚ at www.wra.org/LU0401 and Legal Update 05.08, ‚ÄúFederal Laws Impacting REALTOR¬ģ Practice,‚ÄĚ at www.wra.org/LU0508.

Does an agent have to be registered with DATCP to make calls?

Yes, the only way to legally determine if a number is on the Wisconsin no-call list is to register with the Department of Agriculture, Trade and Consumer Protection (DATCP). Numbers on the federal no-call list (up to five area codes) may be obtained free of charge from the national registry at telemarketing.donotcall.gov. Once both lists have been checked, cold calling can be done to any number not on the ‚Äúdo-not-call‚ÄĚ lists.

The registration fees as well as an overview of the ‚Äúdo-not-call‚ÄĚ rules are found in Legal Update 02.11, ‚ÄúTelephone Solicitation Rules and the No-Call List,‚ÄĚ at www.wra.org/LU0211. In addition, the WRA has compiled instructions on how to access the federal registry information sheet. See ‚ÄúAccessing the ‚ÄėDo-Not-Call‚Äô Registry,‚ÄĚ available at www.wra.org/donotcallpdf. Follow the safe-harbor procedures to ensure maximum liability protection under federal law.

Compliance checklist

  • Determine on a call-by-call basis, ‚ÄúShould I call?‚ÄĚ
  • Check office policy for calling guidelines.
  • Ask, ‚ÄúIs it a solicitation?‚ÄĚ If so ask, ‚ÄúIs the call exempt?‚ÄĚ Don‚Äôt disguise a call by pretending it is a survey.
  • Register with the Wisconsin DATCP.
  • Access the National Registry.
  • Maintain a company no-call list.
  • Check numbers on both registries and the company‚Äôs individual no-call list.
  • Update to maintain current lists.

Tracy Rucka is a Staff Attorney for the WRA.

Copyright 1998 - 2020 Wisconsin REALTORS¬ģ Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education