Telephone Solicitation Law 

FTC and FCC federal regulation

The Federal Trade Commission (FTC) regulates both interstate telephone solicitations and the National Do-Not-Call Registry, while the Federal Communications Commission (FCC) regulates interstate calls, and also intrastate calls when state law is not more restrictive (Wisconsin law is regarded as more restrictive).

Calls to a consumer’s residence or cell phone that encourage purchase, rental or investment in property, goods or services are regulated. For REALTORS^® this includes cold calling, calls to owners with cancelled or expired listings, calls to FSBOs and calls to consumers referred by others. REALTORS^® placing these calls should check whether the phone number is on the National Registry, if an exception does not apply, in order to avoid potential liability. The exceptions to the federal Do-Not-Call rules include established business relationships, prior written permission and personal relationships.

Penalties for violating federal no-call law include fines of up to $11,000 per violation, private actions seeking damages of $500 plus possible attorneys fees and costs, and DRL disciplinary actions.

Internal do-not-call lists

Other regulations enacted pursuant to the Telephone Consumer Protection Act of 1991 include provisions requiring those who engage in any telephone solicitation to home telephone numbers to maintain a company-specific or internal Do-Not-Call list (47 CFR 64.1200). Every such company must maintain a list of persons who ask not to receive telemarketing calls and also must have a written policy, “available upon demand,” explaining the company’s procedures for maintaining this list. The rule may apply even if the company does not do cold calling or traditional telemarketing. Any telephone call where a property or service is advertised or offered to the other party may be enough to pull a broker into the category of a telemarketer.

This rule is discussed on page 4 of the August 2003 Legal Update, “Federal ‘Do Not Call’ and ‘Do Not Fax’ Regulations,” online at www.wra.org/LU0308. Also see “Creating an Office Policy for DNC Rules” on NAR's website at www.realtor.org/letterlw.nsf/pages/1203officepolicy.

DATCP telephone solicitation rules

The Department of Agriculture, Trade and Consumer Protection (DATCP) defines a “telephone solicitation” as an unsolicited telephone call that encourages the consumer to purchase property, goods or services, or a call that is part of a plan or scheme to encourage the consumer to buy property, goods or services. These “telephone solicitation” calls include traditional telemarketing activity and calls a REALTOR^® makes to his or her clients or customers regarding transactions. No agent can legally make a telephone solicitation call to a Wisconsin residence unless the broker is registered with the DATCP or unless the purpose of the call is exempt. For instance, a call made in response to the consumer’s affirmative request for that call, or a telephone call to a current client, is exempt. For a detailed discussion of the rules and exemptions, see pages 3-6 of the July 2004 Legal Update, “Legal Action Issues Update,” online at www.wra.org/LU0407.

Brokers who allow or require cold calling need to comply with the DATCP’s telephone solicitation registration requirements and fees. If a broker/company is registered with the DATCP and pays its fees, then the agents can make telephone solicitation calls as long as the telephone numbers called are not on the Do-Not-Call list.

REALTOR^® resource page: See the No Call — No Fax resource page at www.wra.org/nocall for additional federal and Wisconsin no-call information.

FTC CAN-SPAM rules

The federal CAN-SPAM Act applies to all solicited and unsolicited commercial emails, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” This includes emails that promote or sell a product or service for a fee, such as REALTOR^® emails offering properties or brokerage services. CAN-SPAM requires all commercial emails to include these elements:

• A legitimate return email address and a valid physical postal address.
• A clear and conspicuous notice of the recipient’s opportunity to “opt out” of any future commercial email.
• A mechanism or an active email address that the recipient may use to ask to not receive further email.
• A clear and conspicuous notice that the message is an advertisement or a solicitation.
• Clear notice in the subject heading if a message includes pornographic or sexual content.

CAN-SPAM rules for wireless devices

REALTORS^® who send commercial emails to wireless devices such as PDAs, pagers and cell phones must first check the FCC’s list of wireless domain names. The FCC rules for mobile services commercial messages (MSCM) impose a $250 fine for each commercial email sent to any domain name on the list absent express prior permission from the MSCM recipient. Consent can be obtained verbally or in writing.

For additional CAN-SPAM information, see the February 2006 Legal Update, “Real Estate Advertising,” online at www.wra.org/LU0602.

FCC fax legislation

To send an unsolicited fax advertising the commercial availability or quality of any property, goods or services, REALTORS^® must have permission (written, electronic or verbal) or meet the following requirements from the Junk Fax Prevention Act:

Established business relationship (EBR)

An EBR is a prior or existing relationship formed by voluntary two-way communication between a person or entity (sender) and a residential or business subscriber — with or without consideration — on the basis of an inquiry, application, purchase or transaction by the recipient regarding products or services offered by the sender, provided the relationship has not been previously terminated by either party. An EBR exists with former clients and customers or any consumer who inquires about brokerage services. REALTORS^® need an EBR to send faxes about listings to other brokerages, but an EBR will be present with other brokerages who have been in cooperative transactions with the sender or who have inquired via email or phone about any of the sender’s listings. There are no time limits for an EBR.

Voluntary receipt of the recipient’s fax number

The EBR was in existence and the sender had the recipient’s fax number as of July 9, 2005; or the fax number was provided voluntarily by the recipient via business card, letterhead, fax cover sheet or phone, or is publicly available in a published directory, advertisement or website.

Opt out on first page of faxes

Clear and conspicuous opt-out instructions must appear on the cover sheet or first page of the fax indicating that the recipient has the right to opt out of future unsolicited fax advertisements. The opt-out message must provide (1) a domestic telephone number and fax number where the recipient may send an opt-out request and (2) a cost-free means for opt outs if the phone and fax numbers involve a charge. A cost-free opt-out mechanism includes a local or toll-free telephone number, an email address or a website. The sender’s failure to comply within 30 days is illegal.

The penalties for violating the federal fax law are $500 per facsimile and treble damages may be imposed for willful violations.

Debbi Conrad is Director of Legal Affairs for the WRA.