National Do Not Call Registry
In 2003, the Federal Communications Commission (FCC) established the National Do Not Call Registry. The registry is a list of phone numbers of consumers who do not want to be contacted by commercial telemarketers. It is managed by the FTC and is enforced by the FTC, the FCC, and state officials. The registry applies to any plan, program, or campaign to sell goods or services through interstate phone calls.
The registry does not limit calls by:
- political organizations,
- charities,
- collection agencies
- telephone surveyors.
Fortunately, the law establishes specific guidelines for when licensees may contact consumers, even when they are listed in the National Do Not Call Registry.
Licensees are permitted to call consumers with whom they have an established business relationship up to 18 months following the consumer’s last payment, purchase, or delivery. With consumers on the registry who have submitted applications or made inquiries, licensees are allowed additional contact for up to three months after the fact.
Accessing the National Do Not Call Registry
Sellers, telemarketers, and other service providers must register to access the registry. The do-not-call registry may not be used for any purpose other than preventing telemarketing calls to the telephone numbers on the registry.
Regulators say that brokerage companies must have a do-not-call policy even if they do not engage in cold calling. A company that is a seller or telemarketer could be in violation of the law for placing any telemarketing calls (even to numbers not on the do-not-call registry) if the company does not have a policy for access to the registry. Violators may be subject to fines for each call placed.
To successfully avoid penalties (“safe harbor”), the seller or telemarketer must demonstrate the following:
- It has written procedures to comply with the do-not-call requirements.
- It trains its personnel in those procedures.
- It monitors and enforces compliance with these procedures.
- It maintains a company-specific list of telephone numbers it may not call.
- It accesses the national registry every 31 days before calling any consumer and maintains records documenting this process.
- It must show that any call made in violation of the do-not-call rules was the result of an error.
The best source of information about complying with the do-not-call rules is the FTC’s Web sites: www.donotcall.gov and www.ftc.gov. They include business information about the registry.
The CAN-SPAM Act
The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements:
- for sending commercial e-mail,
- spells out penalties for those that don’t comply, not just “spammers”,
- gives consumers the right to have e-mailers stop e-mailing them.
The act does not apply to “transactional or relationship content,” that is, those messages meant to facilitate or alter existing customer agreements (for instance, by giving a customer additional information about an existing agreement or conducting business as part of an existing agreement); however, these e-mails must not explicitly or implicitly operate for the purposes of advertising or promotion, as this would be in violation of the law.
Briefly, the CAN-SPAM Act requires the following:
- False or misleading header information is banned. An e-mail’s “From,” “To,” and routing
information- including the original domain name and e-mail address must be accurate and identify the person who initiated the e-mail.
- Deceptive subject lines are prohibited. The subject line cannot mislead the recipient about the contents or subject matter of the message.
- E-mail recipients must have an opt-out method. You must provide a return e-mail address or another Internet-based response mechanism that allows a recipient to ask you not to send future e-mail messages to that e-mail address and requests must be honored.
Each violation is subject to fines. Deceptive commercial e-mails are also subject to laws banning false or misleading advertising. Additional fines are provided for commercial e-mailers who violate the rules and do any of the following:
- “Harvest” e-mail addresses from Web sites or Web services that have published a notice prohibiting the transfer of e-mail addresses for the purpose of sending e-mail
- Generate e-mail addresses using a “dictionary attack” combining names, letters, or numbers into multiple permutations
- Use scripts or other automated ways to register for multiple e-mail or user accounts to send commercial e-mail
- Relay e-mails through a computer or network without permission for example, taking advantage of open relays or open proxies without notification.
Licensees in Illinois should be aware that they are subject to additional regulation in their use of commercial e-mail, per the Illinois Electronic Mail Act. The use of e-mail communication and Web advertising is also restricted as laid out in “Rules” Section 1450.145.
The Junk Fax Prevention Act
The Junk Fax Prevention Act of 2005 does not legalize unsolicited fax advertisements or solicitations but does allow for an established business relationship exception. As a general rule, a real estate licensee could not legally send an unsolicited commercial fax message without express written consent or without an established business relationship with the recipient.
Following are the provisions of the fax law:
Sets out guidelines for what constitutes an established business relationship (EBR) and reaffirms that EBR when customers pose exceptions to the ban on unsolicited commercial faxes:
- Does not place time limitations on EBRs
- Requires companies to offer a free method by which fax recipients may opt out of receiving future fax communications. The opt-out method must be available at any time of day, every day, and the opt-out information must be made available on the first page of the fax.
- Requires businesses to receive customer’s written or oral consent to send fax advertising, or in the case of new business relationships, to send only to those customers who have provided their fax numbers willingly to some other source with permission for such use by other parties (including the sender)
- Permits businesses to send faxes to numbers that they had access to via an EBR prior to July 9, 2005, when the act became law.
Requires businesses to receive direct consent from EBR customers for whom they did not already have fax numbers prior to the effective date of the legislation, or to obtain these numbers via some other source to which the EBR customer willingly provided them with permission for such use by other parties (including the sender)
