With the recent 6th U.S. Circuit Court of Appeals case, Charvat v. NMP, LLC, Case No. 10-3390 (CA6 August 30, 2011) www.ca6.uscourts.gov/opinions.pdf/11a0248p-06.pdf, it seemed appropriate to revisit a topic that has not received much attention in recent years: the Do Not Call Registry.  

In this case, Philip Charvat claimed in 2008 that he received 33 telemarketing calls over a three month window to his Ohio home for the purpose of selling him a membership in the NASCAR Membership Club. According to Charvat, the first call was prerecorded, the second and third were from a live agent, and the remaining 30 calls were prerecorded. Charvat claims to have told the agent during the third call to place his name and residential telephone number on the caller’s “do not call” list. 

The primary discussion surrounded whether Charvat could recover $500 in damages for each violation during each call. Charvat alleged that each call contained five violations, ranging from the company failing to maintain a company-specific “do not call” list to failing to honor his request not to be called again. 

The trial court determined that Charvat was only entitled the $500 per call and threw out his case because he did not meet the $75,000 jurisdictional minimum for federal court. While on appeal, the Court of Appeals agreed with the trial court that Charvat could only recover $500 per call, and the Appellate Court also determined that there were violations of the Federal Communication Commission’s (FCC) automated call rules. The Court determined that if Charvat could prove that the company “willfully and knowingly” violated the automated telephone call requirements of the FCC, he would be entitled to $1,500 plus $1,500 for a willful and knowing violation of the “do not call” list requirements. If Charvat could prove these violations, his damages would be upwards of $93,000, which is calculated from 31 calls at $3,000 each. The Court of Appeals reversed and remanded the case for further proceedings. 

As Charvat shows, violating the Do Not Call Law has serious consequences. Therefore, the following is a discussion of the Do Not Call regulations and how they may affect your real estate practice. 

Federal regulation

The Federal Trade Commission (FTC) regulates interstate telephone solicitations and the national Do Not Call Registry. The FCC regulates calls that are both intrastate, within the state, as well as interstate, or between states, including calls made within Wisconsin. Both the FTC and FCC regulations became effective in 2003. 

These regulations apply to calls to a consumer’s residence or cell phone encouraging the purchase, rental or investment in property, goods or services regulated under federal law. This would include cold calling, calls to owners with cancelled or expired listings, calls to FSBOs and calls to consumers referred by others. Agents should always be reminded to check the national Do Not Call Registry at telemarketing.donotcall.gov/profile/create.aspx to determine if the phone number is on the list, which could include cell phone numbers that are not registered on the Wisconsin list. 

The penalty for violating the law includes fines of up to $11,000 per violation, as well as lawsuits seeking damages of $500 plus possible attorney fees and costs, and disciplinary actions by the Department of Safety and Professional Services (DSPS). If a consumer has asked to be put on the company’s “do not call” list, the company may not call even if it has an established business relationship with the consumer. If the company calls again, the company may be subject to a penalty up to $11,000. 

However, there are some exceptions to the rule: 

• Established business relationships: Arises out of an existing business transaction, purchase or transaction within the last 18 months or an inquiry or application with the last three months, directly from the consumer.
• Prior written permission: Requires the caller to receive permission from the recipient in a written agreement to be called at a specific telephone number prior to any stated expiration date by the caller.
• Personal relationships: Includes relationships with family members, friends and acquaintances. 
• Charitable contributions: While those soliciting charitable contributions are not required to look at the list, they must honor consumer do-not-call requests. 
• Politics and surveys: Calls from political organizations and telephone surveyors are exempt unless the caller is offering to sell goods or services. 
• Exempt industries: Long-distance phone companies and airlines.

Wisconsin regulation

Wisconsin law does not create more restrictive guidelines than the federal law. Generally if a company is following federal law, it is also in compliance with Wisconsin law. However, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) also addresses “telephone solicitation,” which DATCP defines as a 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.

Brokers that participate in cold calling in Wisconsin should also register with the DATCP. To request a registration packet, contact DATCP by e-mail at winocall@datcp.state.wi.us, by telephone at (608) 224-4999 or by fax at (608) 224-4939. 

As with the federal law, DATCP also includes exemptions to the rules. The DATCP exemptions include: 

1. Return calls requested by consumers.
2. Calls to persons referred to a REALTOR^® if the person requested the call.
3. Calls to a broker’s customers or clients to encourage the purchase of a product or service related to the real estate transaction.
4. Calls to any party in a transaction in which a broker is providing brokerage services - even if they are not clients or customers of the caller - to encourage the purchase of products or services necessary to complete the real estate transaction.
5. Calls to any party in a transaction through the time of closing - even if they are not clients or customers of the caller - to assist the parties in processing the transaction.

Federal safe harbor provisions

The FCC created safe harbor provisions that protect a company from liability, or rather a lawsuit, if the company inadvertently calls a number on the registry. 

If the company accidentally calls a registered number, the company will be provided the protections of the safe harbor provisions if the broker can demonstrate that under its routine business practice: 

1. It has established and implemented written procedures to comply with national Do Not Call Rules.
2. It has trained its personnel in the procedures established pursuant to the national Do Not Call Rules. 
3. It has maintained and recorded a list of telephone numbers it may not contact.
4. The broker uses a process to prevent telemarketing to any telephone number on any list established pursuant to the national Do Not Call List employing a version of the Do Not Call Registry obtained from the national registry no more than three months prior to the date any call is made, and maintains records documenting this process.
5. And any subsequent call otherwise violating the Do Not Call Rules is the result of error.

Maintaining the company’s internal “do not call” list

The FCC rules require companies to maintain a list of persons who request not to receive telemarketing calls from the company. The following are the minimum FCC standards that must be met by a company regarding its internal “do not call” list:

1. Written policy: Persons or entities making calls for telemarketing purposes must have a written policy, available upon demand, for maintaining a “do not call” list.
2. Training of personnel engaged in telemarketing: Personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the “do not call” list.
3. Recording, disclosure of “do not call” requests: If a person or entity making a call for telemarketing purposes receives a request from a consumer not to receive calls from that person or entity, the person or entity must record the request and place the consumer’s name, if provided, and telephone number on the “do not call” list at the time the request is made. A consumer’s request to not be called must be honored within a reasonable time from the date the request is made, not exceeding 30 days from the date of the request.
4. Identification of sellers and telemarketers: A person or entity making a call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted.
5. Maintenance of “do not call” lists: A person or entity making calls for telemarketing purposes must maintain a record of a caller’s request not to receive further telemarketing calls and honor the request for five years from the time the request is made.

Company policy and do-not-call

For a company to ensure it is clearly within the safe harbor protection, the company should consult with their legal counsel to help create a written company policy. The office policy should set forth the creation and monitoring of the list of individuals who have requested not to receive any further phone calls from the company. When a consumer makes such a request, the company must honor it for up to five years. The company policy needs to address the process for creating the company-specific “do not call” list, maintenance of this list, and where to go to access the list of names. 

All agents of the company should have a clear understanding of what actions should be taken when an individual requests the company no longer contact them and where to check prior to making any telemarketing calls. The company-specific “do not call” list policy should include direction as to what actions an agent should take when a consumer requests that they no longer be contacted by the company. The agent needs direction as to where they will record the name of the individual, the name of the person who called, the telephone number called and date and time of the call. The policy should further direct that agent as to where the request should be documented in writing. In addition, the policy should address who is going to be responsible to maintain the list and how long after the individual receives a new name or telephone number the list will be corrected. 

Another item not to forget: the Federal CAN SPAM Rules that apply to all unsolicited and solicited commercial e-mails as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The Federal CAN SPAM Rules regulation would include e-mails that promote or sell a product or service for a fee, such as REALTOR^® e-mails offering properties or brokerage services. For more information, read the August 2005 Legal Update, “Federal Laws Impacting REALTOR^® Practice,” at www.wra.org/LU0805. 

Resources

National Association of REALTORS^®, Field Guide to Do-Not-Call, Do-Not-Fax, and Do-Not-E-mail Laws at www.realtor.org/library/library/fg707. 

Wisconsin REALTORS^® Association, No Call- No Fax Resources at www.wra.org/NoCall. 

August 2003 Legal Update, “Federal ‘Do Not Call’ and ‘Do Not Fax’ Regulations” at www.wra.org/LU0308. 

Cori Lamont is Director of Brokerage Regulation and Licensing for the WRA.