Do Nots by fanzhongqing

VIEWS: 0 PAGES: 57

									REALTORS® …
The Do-Not-Call Law Means You

   Telemarketing



                   e-Mailing



                                Faxing


                     Teton Board of REALTORS®
                     Jackson, Wyoming
                     March 24, 2005
Part One:

Do Not Call
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 . . .
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
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.
Existing Cell Phone
Regulations …


• 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.
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.
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.
  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.
Compliance
Requirements …
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.
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.
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).
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:
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).
February 18th 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.
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.
As of: February 2005 …

  • 85,000,000 numbers have been registered
    (roughly 85% of US adults)

  • 428,000 reported violations involving
    130,000 companies

  • Since the regulations were enacted
    residential calls have been reduced from an
    average of 30 per month to 6.
Upheld …
US Supreme Court
October 4, 2004


• A telemarketer’s right to free speech is not
  violated by the government’s do-not-call
  list.

• The do-not-call registry “directly advances
  government’s important interest in
  safeguarding personal privacy”.
FCC February 18th
Order:


• In issuing this Order, the FCC made a
  strong statement indicating its
  unwillingness to consider further
  exemptions from the Do-Not-Call rules.
       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.
Penalty …

• Telemarketers who
  disregard the registry
  may be fined up to
  $11,000 per call.
A Recent Example …

           … Phoenix based Dynasty
• March 2005
  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
Part Two:




        CAN SPAM
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.
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.
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”
Exempt …
“transactional or relationship e-mails”
whose primary purpose is to:


1.   Facilitate, complete or confirm a commercial transaction that the
     recipient has previously agreed to enter into with the sender.
2.   Provide warranty information, product recall information or safety
     or security information for a product or service purchased or used by
     the recipient.
3.   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.
4.   Provide information directly related to an employment relationship
     or benefit plan in which the recipient is enrolled.
5.   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.
   Rules on “primary purpose”
   of a commercial e-mail:
• 1) If the e-mail’s 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.
• 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.
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 (don’t let your mail box fill up) and opt-outs
    must be honored within 10 days.
  • A valid postal address.
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.
Enforcement:

• FTC

• Federal and State
  Regulators

• ISPs (may sue for
  injunctive relief and
  damages)
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
September           16 th:




• The Federal Trade Commission gave
  limited endorsement to offering cash
  rewards to people who help track down e-
  mail spammers
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 person’s 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.
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.
Part Three:
Do Not FAX!




              • October 1, 2004 the
                FCC issued a “stay”
                of the fax rules until
                July 1, 2005.
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.
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.
The New Rule …

• Requires prior to sending a fax:
• 1) express written permission from recipient,
• 2) the recipient’s 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.
“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."
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.
Not included:



• Faxes deemed non-commercial in nature such
  as:
• policy papers,
• surveys,
• notices of (free) association meetings.
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.
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.
Penalties:



• $500 per fax

• $1500 per blast fax to strangers
They’ll 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
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.
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.
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.
NAR’s Model Consent Form
(Gov’t 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.
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.
Thank You

								
To top