Teton Board of REALTORS® Jackson, Wyoming March 24, 2005 REALTORS® … The Do-Not-Call Law Means You Telemarketing e- Mailing Faxing
Transcript
1. Teton Board of REALTORS Jackson, Wyoming March 24, 2005
REALTORS The Do-Not-Call Law Means You Telemarketing e-Mailing
Faxing
2. Part One: Do Not Call
3. Telemarketing Definitions
Seller: any person who offers to provide goods or services to
the customer in exchange for consideration.
Telemarketing: a plan or program or campaign which is conducted
to induce the purchase of goods or services . . .
4. Legislative Background: Telemarketing Laws
Telephone Consumer Protection Act of 1991 (TCPA) and
accompanying FCC regulations.
Telemarketing and Consumer Fraud and Abuse Prevention Act of
1994 and accompanying FTC regulations.
Do-Not-Call Implementation Act of 2004 (effective October 16,
2003) Preempting State Law
5. Previous Restrictions Pursuant to Telemarketing Laws &
Regulations
Calls may only be made between the hours of 8:00 a.m. and 9:00
p.m.
Callers must disclose all material information about the goods
or services they are offering and the terms of the sale.
Companies are required to maintain their own company-specific
do-not-call list and honor consumer requests to be placed on the
list.
Companies are required to have written policies on maintaining
their do-not-call lists.
6.
Unsolicited autodialed or prerecorded calls are prohibited to
any cell phone even if there is an established business
relationship.
Updated to include other wireless devices.
Existing Cell Phone Regulations
7. Restrictions Pursuant to the 2003 Do-Not-Call Implementation
Act
Congress gave the FTC a mandate to create a National
Do-Not-Call Registry for residential numbers.
Telemarketers and sellers are prohibited from calling a phone
number listed on the Registry (exceptions exist).
Telemarketers and sellers are required to scrub their calling
lists against the Registry at least every three months. Interstate
calls must be scrubbed once a month.
8. Existing Business Relationship Exemption
A business relationship based upon a transaction between the
company and the consumer within the previous 18 months or within 3
months of an inquiry, application or request by the consumer.
Prior written permission to call.
9. Also Exempt
Charities
Tax-exempt non-profit organizations (c)(3) not (C)(6)
Political campaigns
Surveys
Polls
Note: These regulations only apply to residential phone
numbers.
10. Compliance Requirements
11. Telemarketers Must Register
www.telemarketing.donotcall.gov
Provide name, address, Federal ID (organization profile)
Designate a Contact Person
Certify that your company is in compliance with all
telemarketing laws.
12. Database Access
You will be given a Subscription Account Number (SAN) and a
password.
You may download the full lists of five area codes and purchase
software to scrub the FTC lists against the numbers you wish to
call.
(or)
You may check up to 100 numbers (per log-in) interactively in
groups of ten numbers at a time.
13. Cost
First 5 area codes are free additional codes $40 each.
Instant access to lists when paid by a credit card
Good for one year
Must renew subscription
1-888-382-1222 (TTY 1-866-290-4236).
14. Safe Harbor Provision: calls made in error
You will not be held liable if you have in place and practice
the following seven point office policy:
15. Office Policy
Register with the FTC and create an Organization Profile on
line.
Adopt written office procedures for making sales calls.
Train your office and sales staff.
Require your agents to scrub any numbers they have against a
current FTC list before making sales calls.
Check agent compliance periodically.
Maintain your own agency do-not-call list.
Be able to show proof of a registry update within last three
months (one month if making interstate calls).
16. February 18 th FCC Order
Prohibits calls to FSBOs whose numbers are on the Do-Not-Call
list unless the real estate professional is representing a
potential buyer and the purpose of the call is to discuss the
potential sale of the property to the represented buyer.
Real estate professionals are not permitted to call expired
listings (with whom they do NOT have an existing business
relationship) or FSBOs for the purpose of offering services to
homeowners.
17. Creating Consumer Expectations
If you register consumers at open houses or use an automated
system that provides information on homes and captures the number
of the caller (an inquiry) be sure to include in your message that
one of your agents will follow up with a call.
18. As of: February 2005
85,000,000 numbers have been registered (roughly 85% of US
adults)
Since the regulations were enacted residential calls have been
reduced from an average of 30 per month to 6.
19. Upheld US Supreme Court October 4, 2004
A telemarketers right to free speech is not violated by the
governments do-not-call list.
The do-not-call registry directly advances governments
important interest in safeguarding personal privacy.
20. FCC February 18 th Order:
In issuing this Order, the FCC made a strong statement
indicating its unwillingness to consider further exemptions from
the Do-Not-Call rules.
21. Consumer Complaints
www.donotcall.gov
by phone: 1-888-382-1222.
Consumers must report the date of the call and either the name
or the phone number of the company that called.
22. Penalty
Telemarketers who disregard the registry may be fined up to
$11,000 per call.
23. A Recent Example
March 2005 Phoenix based Dynasty Mortgage was cited by the FCC
for 70 calls to 50 homes and fined the maximum of $11,000 per
violation ($770,000)
Dynasty had been warned in December of 2003
24. Part Two: CAN SPAM
25. CAN-SPAM Legislation
Effective date January 1, 2004.
CAN SPAM (Controlling the Assault of Non-Solicited Pornography
and Marketing Act)
Sought by retailers, marketers and ISPs seeking a single set of
rules to preempt 35 state spam laws.
26. Unlike Do-Not-Call
CAN SPAM does not ban any solicited or unsolicited e-mails.
(Congress authorized but the FTC did not create a do-not-spam
registry.)
CAN SPAM pre-empts state spam laws except portions of state law
that prohibit falsity or deception in any e-mail or
attachment.
CAN SPAM identifies practices to be followed by those who send
commercial e-mails originating in the US.
CAN SPAM bans certain fraudulent or deceptive practices and
criminalizes techniques used by spammers to avoid detection.
27. Key Definition: Commercial Electronic Mail Message
Any electronic mail message the primary purpose of which is the
commercial advertisement or promotion of a commercial product or
service
28. Exempt transactional or relationship e-mails whose primary
purpose is to:
Facilitate, complete or confirm a commercial transaction that
the recipient has previously agreed to enter into with the
sender.
Provide warranty information, product recall information or
safety or security information for a product or service purchased
or used by the recipient.
Provide information of a change in the terms, features, status,
, membership, ongoing purchase or use of products or services
offered by the sender and used by the recipient.
Provide information directly related to an employment
relationship or benefit plan in which the recipient is
enrolled.
Deliver goods or services that the recipient is entitled to
receive under the terms of a transaction that the recipient has
previously entered into with the sender.
29. Rules on primary purpose of a commercial e-mail:
1) If the e-mails content solely advertises or promotes a
product or service, it would be deemed commercial
2) If the e-mail contains both commercial and transactional or
relationship content, the e-mail would be deemed commercial if
either:
a) the recipient deems from the subject line that the e-mail
advertises or promotes a product or service
b) the transactional or relationship content is not located at
or near the beginning of the e-mail.
30.
3) If the e-mail contains both commercial and non-commercial
content, the e-mail would be deemed commercial if:
a) the recipient concludes from the subject line that the
e-mail is commercial.
b) the recipient concludes from the text that the main purpose
of the e-mail is to advertise or promote a product or service.
31. If You Send a Commercial Message it Must Include:
A clear and conspicuous notice that the message is an
advertisement or solicitation.
A legitimate return e-mail and physical postal address.
An Internet-based mechanism by which the recipient may opt-out
of future commercial e-mail messages. The opt-out address must
remain active for 30 days after the transmission of the e-mail
(dont let your mail box fill up) and opt-outs must be honored
within 10 days.
A valid postal address.
32. Safe Harbor
There is no Safe harbor and the FTC did not provide a blanket
exemption for nonprofit associations.
However, in actions brought by AGs and ISPs courts are
permitted to consider whether defendants have followed reasonable
compliance procedures when awarding damages.
33. Enforcement:
FTC
Federal and State Regulators
ISPs (may sue for injunctive relief and damages)
34. Civil and Criminal Penalties:
$250 per violation ($750 if willful)
3 years in prison for deception, falsifying header information,
hacking, sending large numbers of commercial e-mails or falsifying
registration.
5 years in prison if committed in furtherance of a felony
35. September 16 th :
The Federal Trade Commission gave limited endorsement to
offering cash rewards to people who help track down e-mail
spammers
36. Also
You may not harvest e-mail messages automatically or purchase
harvested e-mail addresses.
Once a recipient opts-out of e-mail communication, the Act
prohibits the sale, lease, exchange, transfer or release of that
persons e-mail addresses to anyone else for any purpose. Publishing
an opted-out e-mail address in your membership roster might be a
questionable process.
37. Spam Facts
There are some 95,000 spam messages sent every day.
1 in 63 have a virus.
15% of all opt-out buttons are fake.
80% of all spam is sent by 600 people.
Can-Spam compliance rose from one-half of one percent in
December 03 to 7% in December 04.
38. Part Three: Do Not FAX!
October 1, 2004 the FCC issued a stay of the fax rules until
July 1, 2005.
39. Legislative Background
Telephone Consumer Protection Act of 1991 (TCPA) prohibits the
sending of unsolicited facsimile advertisements to a business or
consumer without the express permission or invitation of the
recipient.
This prohibition remains in effect today.
40. What Is New ?
For the past 14 years, the FCC has interpreted express
permission or invitation to include:
1) Established business relationships, such as: REALTOR to
client, REALTOR to REALTOR, REALTOR Association to REALTOR,
etc.
2) Oral consent to receive fax from recipient.
41. The New Rule
Requires prior to sending a fax:
1) express written permission from recipient,
2) the recipients specified fax number
3) signature of the fax recipient
Consent to receive faxes cannot be implied by listing a fax
number on a membership application.
Applies to faxes sent to both business and residential
numbers.
42. Unsolicited Advertisement Defined
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
."
43. Examples:
Listing agreements, listing presentations and CMAs
Property listings and buyer representation agreements.
Offers to purchase, counteroffers, disclosure forms, etc.
Information about continuing educations classes, meetings,
seminars, annual conventions, products and services where a fee is
charged.
44. Not included:
Faxes deemed non-commercial in nature such as:
policy papers,
surveys,
notices of (free) association meetings.
45. Political announcements and solicitations
Purely political announcements or PAC solicitations do not
appear to be subject to the fax Rules.
If the fax promotes a fundraising dinner or some other type of
prize in return for a political donation, it may fall within the
Rules.
46. Association fax-on-demand
When faxing (non-advertising) information in response to a
request from a member prior permission is not required.
When faxing promotional materials for a fee based seminar
written consent is needed even if the member has requested the
information through a phone call.
If the cover sheet to any fax contains an advertising message,
prior written consent is required.
47. Penalties:
$500 per fax
$1500 per blast fax to strangers
48. Theyll Never
Charter One Bank $1,800,000
Hooters $12,000,000
Fax.com $5,380,000
Seventeen Motors $7,000,000
Visit www.tcpalaw.com
49.
50.
51.
52. NAR has Petitioned for Reconsideration seeking to:
Clarify that the definition of an inquiry within the
established business relationship need not be signed and in
writing.
Allow faxes to those with whom they have done business in the
past.
Reconsider the consent requirements to permit other forms of
permission such as: electronic, oral, or permission given through a
third party.
53. Compliance
It is strongly recommended that associations alter their
listing/representation forms to include language that obtains the
customer's consent to receive faxes from their broker.
Ask new members to sign a consent form when they join.
Begin collecting consent from existing members.
54. Obtaining Consent:
By direct mail, websites, email and interaction with customers
but not by fax.
Electronic and digital signatures are acceptable, provided they
comply with applicable law.
55. NARs Model Consent Form (Govt Affairs/hot link to Do
Not/field guide)
Contains consent for associations
Local Association collecting member consent for state and
national associations is not required to send the consent forms to
state and national offices.
Information entered into the NRDS database will show whether or
not a member has consented to receive marketing communications from
REALTOR associations.
56.
NAR has published a Do-Not-Call, Do-Not-Fax, Do-Not-E-mail
Toolkit to provide REALTORS with briefing material and compliance
information on the federal the anti-solicitation laws/rules.
To order the toolkit, please go to: http://www.realtor.org/ Do
Not Call
or call Information Central at 800/874-6500 Request item
number: 186-100.
