As REALTORS^® may recall, the rules for the use of the national "do not call" registry come from both the Federal Trade Commission (FTC) and the Federal Communication 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.

Meanwhile, Wisconsin's "do not call" law and regulations remain in effect in Wisconsin because they are more restrictive than the FCC rules. The FCC preempts any state telemarketing laws that are less restrictive than the FCC rules. At present, REALTORS^® 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.

Do-not-call updates 

1. Registry fees increase: The FTC will revise the fees for accessing the national registry effective September 1, 2004. The annual fee for each area code will go up from $25 to $45. Access to the registry for the first five area codes remains free, so brokers who call only Wisconsin's five area codes will continue to pay no fees.
   
2. Monthly scrubbing from the registry: Beginning January 1, 2005, persons who use the national "do not call" registry must update their list of telephone numbers at least every 31 days instead of once every three months. REALTORS^® may wish to evaluate whether new systems and procedures will be needed for this more frequent scrubbing schedule.

See the Telemarketing Solicitation Rules & the No Call List REALTOR^® Resource page at www.wra.org/nocalls for additional information.

Unsolicited facsimile advertisements

The TCPA prohibits the use of any telephone facsimile machine, computer or other device to send unsolicited advertisements, defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Persons sending fax ads must identify themselves to the recipient and transmissions must include the date and time sent. Starting January 1, 2005, the FCC fax rules will require that a person must obtain the prior express invitation or written permission of the fax recipient that includes the fax number and recipient's signature. This means that REALTORS^® and REALTOR® associations would have to get the written signed permission of the recipient prior to sending a fax advertisement.

Do-not-fax update

Legislation Introduced to restore established business exemption:  The Junk Fax Protection Act (H.R. 4600) was recently introduced in the U.S. House of Representatives to help correct some of the problems created by the FCC fax rules. This legislation will clarify that permission to send an unsolicited commercial fax can be given verbally and will re-establish the established business relationship exception that previously permitted faxing without express permission to those in an existing business relationship or as the result of an inquiry. See the FCC Fax Regulations REALTOR^® Resource page at www.wra.org/faxregs for additional do-not-fax information.

CAN-SPAM

The CAN-SPAM Act of 2003 defines commercial email to include all electronic messages that advertise or promote a product or service, which includes many if not most emails sent by brokers and the REALTOR^® associations. Commercial emails must include an opt-out or unsubscribe message and a mechanism that can be used to request that no more future email be sent. Commercial emails must also include a return email address, a physical postal address, and a clear and conspicuous notice that the message is an advertisement or solicitation. The FTC administers this program and will issue implementation regulations. For further discussion of this law, see Legal Update 04.01, "Federal Anti-Spam Legislation," at www.wra.org/LU0401, and the FTC website at www.ftc.gov/bcp/conline/edcams/spam/index.html. 

CAN-SPAM updates 

1. FTC rejects do-not-email registry:  The FTC reported to Congress that a "do not email "registry is inadvisable at this time because it could not be enforced effectively, would not reduce the spam received by consumers and might actually increase the amount of spam if spammers used the registry to confirm valid email addresses. The FTC recommends that an authentication standard be developed because that will facilitate better enforcement and better filtering by ISPs that may even make a registry unnecessary.
   
2. FTC rule requires notice on sexually explicit spam:  All spam containing sexually explicit material must contain the warning "sexually explicit" in the subject line, effective
   May 19, 2004.

For more information on all of these issues, go to NAR's Field Guide to Anti-Solicitation Laws: Do Not Call, Do Not Fax and Do Not Email at www.realtor.org/libweb.nsf/pages/fg707.