Do-Not-Call Alert The National Association of Realtors® (NAR) has become aware of an individual threatening to bring claims against real estate brokerages for violating the federal do-not-call laws.
The caller has used this method against other industries and has now focused his efforts on real estate brokerages. The caller is an individual whom the brokerage has never contacted and probably never had any intention of contacting.
The caller’s method works in the following way. First, he contacts the real estate brokerage and asks that his phone number be placed on the company’s internal do-not-call list. He also requests that the brokerage mail him a copy of the company’s policy for maintaining its internal do-not-call list within five days. If the caller does not receive the brokerage’s do-not-call policy within five days, he will threaten to file a lawsuit against the brokerage in Minnesota state court. To avoid the lawsuit, the caller offers the brokerage the opportunity to settle the matter for around $5,000. The caller is not a lawyer. Legal Requirements
The caller’s method is not without legal support. The Federal Communication Commission’s (FCC) regulations, enacted pursuant to the Telephone Consumer Protection Act of 1991 (TCPA), state that those who engage in “any telephone solicitation to a residential telephone subscriber” must also have a “written policy, available upon demand, for maintaining a do-not-call list”— i.e., its company-specific do-not-call policy, not necessarily its policy for complying with the Do-Not-Call Registry (although policy could include this information as well).
The caller also relies on a 1996 FCC letter which states “even where a company does not solicit a particular consumer, we find nothing in our rules that limits a company’s duty to disclose its policy if it does engage in telephone solicitation. Additionally, we believe that failure to provide a do-not-call policy is a prohibited act under the TCPA.” Therefore, if the brokerage is engaged in any telemarketing, it must have a do-not-call policy which must be made available to send to those who request it from the brokerage, possibly even if the brokerage has never contacted the consumer.
The caller’s five-day time frame demand is not supported by the TCPA regulations or FCC correspondence. Instead, the only existing guidance from the FCC states that the brokerage must send its policyin response to a request within a “reasonable amount of time following the consumer’s request.” In addition, FCC rules give a company 30 days to add a consumer’s name to the company’s do-not-call list, further demonstrating that a five-day turnaround time is likely unreasonable. There also might be jurisdiction issues if the lawsuit is filed in Minnesota state court against an out-of-state defendant. Further investigation has discovered that the caller has filed five lawsuits in small claims court, with the last being one being filed in 2003. It is not clear whether he has ever succeeded in court. Nevertheless, the faster you send the policy in response to a request, the better your chances will be of avoiding a lawsuit. Summary
A real estate brokerage’s best defense against claims like those described above is for the brokerage to be prepared to properly respond to these calls. The brokerage should have a written do-not-call policy available upon request; needs to educate its salespeople to respond to these requests by promptly transmitting the policy to the requestors; and should make sure salespeople document the transmission of the policy to the requestor. For those who do not have a do-not-call policy, a model policy is available from NAR’s Web site at www.Realtor.org.
Reprinted with permission of the National Association of Realtors®. Copyright 2006. All rights reserved. Note:
a more complete policy detailing your company’s compliance with the federal Do-Not-Call Registry is recommended, but not required.