Transcript Do Not FAX! - Western Upstate Association of Realtors

REALTORS® …
The Do-Not-Call Law Means You
Telemarketing
e-Mailing
Faxing
Regional AE Conference
Wilmington, North Carolina
July 26, 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)
Previously Existing Restrictions
Pursuant to Telemarketing 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.
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 are required to “scrub” their calling
lists against the Registry at least once every
month.
• Telemarketers and sellers are prohibited from
calling a phone number listed on the Registry
(exceptions exist).
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.
The Truth About
Cell Phones and
the DNC …
• Unsolicited autodialed or prerecorded calls
are prohibited to any cell phone even if
there is an established business relationship.
• Personal cell phone users may add their
numbers to the DNC registry.
Exempt …
• Charities
• Tax-exempt non-profit organizations (c)(3)
not (C)(6)
• Political campaigns
• Surveys
• Polls
Note: The 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 (proposal to increase to $56)
• Instant access to lists when paid by a credit
card
• Must renew subscriptions annually
Transmit Your Name and
Number:
• The FTC requires telemarketers to transmit their telephone
number and, if possible, their name to consumers’ Caller
ID services for all interstate calls.
• A telemarketer’s use of calling equipment that can’t
transmit Caller ID information is no excuse for failure to
transmit the required information.
• the FCC rules prohibit blocking of company information
through a caller identification service. The Rules further
require that a business must provide a number in the caller
ID where consumers can call the business during normal
business hours and make a business-specific do-not-call
request.
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
month.
Is There a Limit?
• There is no number limit to the "safe harbor"
protections. However, note that safe harbor is for
"inadvertent” calls to a number on the Registry,
since the company's policy should prevent all calls
to these numbers. So, if there are numerous
"inadvertent" calls, then the Company probably
doesn't have a very effective office policy and so
is at risk for being liable for violating the Rules.
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 if these numbers are
on the Do-Not-Call list.
Home Business Phones
• Your call to a home-based business should
be related to the actual business being
conducted in the home if the number is in
the DNC Registry.
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.
Creating Consumer
Expectations …
• A “Reasonable Expectation” of a call back is the
standard referenced in the comments accompanying
the DNC Rules.
• If you register consumers at open houses be sure to
have in big bold letters: “BY PROVIDING MY
NAME AND PHONE NUMBER BELOW I AGREE
TO RECEIVE A CALL-BACK FROM THIS
AGENCY”.
• If you use an automated system that provides
information on homes and captures the number of the
caller (an inquiry) you are allowed to call-back for up
to three months.
• If you have a VOW and in the "Terms of Use"
agreement state: "by registering at this site you
agree to receive calls from this agency" it is
possible you could call as long as you meet the
DNC requirements for gathering consent.
• You will need the consumer's signature and phone
number for written consent to receive calls and the
consumer must have a clear indication that they
are consenting to receive calls from the brokerage.
• Since electronic signatures are a state law issue, it
would be wise to work with an attorney.
Statistics …
• 85,000,000 numbers have been registered by 60,000,000
Americans as of February 2005.
In 2004 …. 768,677 registered (GA), 689,181 (NC),
288,023 (SC) and 654,784 (VA).
• 2004 reported violations … 15,649 (GA), 11,478 (NC),
6,393 (SC) and 25,580 (VA).
• 78% are reporting “far fewer calls” or “none at all” since
they registered.
• 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”.
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
Mortgage was cited by the FCC for 70 calls
to 50 homes and fined the maximum of
$11,000 per violation ($770,000)
• March 2005
• Dynasty had been warned in December of
2003
Preemption of State Law
• Portions of State DNC regulations which are more
restrictive than the Federal DNC laws apply.
• SC and VA have no State DNC laws. GA ($10/yr
www.ganocall.com)
• Some state lists are not merged with the federal
list.
State Law Example:
• Wisconsin does not add its DNC list to the "Federal DNC
Registry," so Wisconsin REALTORS have to scrub the
Wisconsin DNC list and the Federal DNC list separately.
• A telemarketer registering with DATCP must pay the
following annual fees, or an annual fee of $20,000
whichever is less:
• An annual registration fee: $700 (first year) and $500
for each year thereafter.
• An annual fee of $75 for each telephone line used by
the registrant (or the registrant's employees or
individual agents) to make telephone solicitations.
• An annual fee of $1,000 for each copy or additional
address to which the registrant requests DATCP to send
the No Call List in hard copy print form ($25 if e-mail
or CD format).
Wisconsin Experience:
“The most effective exemption is to secure advance
permission to call the home -- and now the cell -numbers of the consumer. The agents tend to work
with e-mails, calls to office phones, snail mail,
personal visits, etc. There is no easy exemption
here! We have had agents who relied heavily on
telephone prospecting leave the industry, a few
brokers selling or downsizing their businesses, etc.
It is truly awful!”
Debbi Conrad
Director of Legal Services
WRA
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 emails. (Congress authorized but the FTC did not create a
do-not-spam registry.)
• 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.
• CAN SPAM pre-empts state spam laws except portions of
state law that prohibit falsity or deception in any e-mail or
attachment.
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.
2.
3.
4.
5.
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.
How to determine:
“primary purpose”
• 1) E-mail content solely advertises or promotes a
product or service it is commercial.
• 2) E-mail contains both commercial and
“transactional or relationship content” it is
commercial if either:
a) recipient deems from the subject line that the email advertises or promotes a product or service
b) transactional or relationship content is not located
at or near the beginning of the e-mail.
• 3) E-mail contains both commercial and
non-commercial content it is commercial if:
a) recipient concludes from the subject line
that the e-mail is commercial.
b) 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 e-mail
it must include:
• A “clear and conspicuous notice” that the message
is an advertisement or solicitation.
• A “legitimate” return e-mail address.
• A valid postal address.
• An Internet-based mechanism by which the
recipient may “opt-out” of future commercial email messages. The opt-out address must remain
active for 30 days after the transmission of the email (don’t let your mail box fill up) and opt-outs
must be honored within 10 days.
Enforcement:
• FTC
• Federal and State
Regulators
• ISPs (may sue for
injunctive relief and
damages)
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.
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
th
16 :
• The Federal Trade Commission gave
limited endorsement to offering cash
rewards to people who help track down email 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.
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!
• June 24th the Senate passed S.714
• June 27th the FCC issued a “stay” of the fax
rules until January 9, 2006.
• June 28th the House passed S.714
• July 9th President Bush signed S.714 into law
Legislative Background
• Telephone Consumer Protection Act of 1991 (TCPA)
prohibits the sending of unsolicited facsimile
advertisements to a business or residence without
the express permission or invitation of the recipient.
• PL 102-243 bans sending unsolicited commercial
faxes unless there exists an “existing business
relationship” with the recipient.
Established Business Relationship
(EBR) Examples:
REALTOR to client
REALTOR to REALTOR
REALTOR Association to REALTOR
The FCC Rule Would Have…
Eliminated the EBR and
Required prior to sending a fax:
• 1) express “written” permission from recipient,
• 2) the recipient’s specified “fax number”
• 3) “signature” of the fax recipient
S.714 Compliance …
• Unsolicited commercial faxes may be sent without
prior permission as long as:
• An “established business relationship” predates the
enactment of the Junk Fax Prevention Act, or
• In the case of a new “established business relationship”,
the fax number was provided voluntarily by the
recipient or is publicly available in a published
directory, advertisement or website to which the
recipient gave the fax number for publication.
• One may not purchase fax list from third parties
• The fax bill requires that all unsolicited commercial faxes
include an opt-out provision on the first page of the fax. The
opt-out mechanism will need to be made available 24hours/7
days and at no cost to the consumer. Examples of a cost-free
op-out mechanism include an email address to which to reply,
a local phone number with message option, and an 800
number with message option. A phone number that is a longdistance or toll call would not meet the bill's requirements.
Expect further clarification via rulemaking.
• The bill clarifies that verbal permission to fax is an allowed
means of granting express permission to fax.
• The issue of what constitutes an "advertisement" (does this
include newspaper ads, mag ads, , business cards,
stationery, etc.?) will need to be clarified by rulemaking.
• Despite adoption of this Federal law, state laws on the
sending of unsolicited faxes are NOT preempted. Senders
must comply with both the Federal law and with any
applicable state laws. The Federal law will not allow an
unsolicited fax to be sent where doing so is prohibited by
state law.
FCC Proposed Penalties :
• $500 per fax
• $1500 per blast fax to strangers
FCC Proposed Enforcement …
• Consumer may sue sender directly
• State AGs office may bring action
• Complaint filed with the FCC:
(888-225-5322) or
http://www.fcc.gov/cgb/complaints.html
Existing Enforcement
Actions…
•
•
•
•
Charter One Bank … $1,800,000
Hooters … $12,000,000
Fax.com … $5,380,000
Seventeen Motors … $7,000,000
• Visit www.tcpalaw.com
Class Actions …
Georgia Cases:
•Busbia v. Direct TV, Inc., 2001 TCPA Rep. 1034 (Ga. Super. Apr. 30, 2001) (interlocutory uinjunction
to preserve evidence)
•Carnett's, Inc. v. Hammond, 610 S.E.2d 529, 2005 TCPA Rep. 1337 (Ga. 2005) (reversal)
•Garver v. Susquehanna Radio Corp., 2001 TCPA Rep. 1027 (Ga. Fulton County Mar. 20, 2001) (order
denying Def. mtn. to dismiss [vacated on other grounds and remanded])
•Hammond v. Carnett's, Inc., 596 S.E.2d 729, 2004 TCPA Rep 1274 (Ga. App. March 12, 2004) pet.
cert. filed Mar. 28, 2004. (appeal reversing denial of class certification)
•Hooters of Augusta, Inc. v. Am. Global Ins. Co., 272 F.Supp.2d 1365, 2003 TCPA Rep. 1165, 2003 U.S.
Dist. LEXIS 12681 (S.D.Ga. July 23, 2003) (order finding insurance policy covers TCPA damages)
•McGarry v. Cingular Wireless, LLC, -- S.E.2d --, 2004 TCPA Rep. 1277, 2004 WL 574864 (Ga.App.
Mar. 24, 2004) (order affirming denial of class cert.)
•McGarry v. Cingular Wireless, LLC, 599 S.E.2d 34, 2004 TCPA Rep. 1282 (Ga.App. Mar. 24, 2004)
(order affirming denial of class cert.)
•Nicholson v. Hooters of Augusta, Inc., 1998 TCPA Rep. 1004 (Ga. Super. Aug. 26, 1998) (Order
granting class certification)
•Nicholson v. Hooters of Augusta, Inc., 537 S.E.2d 468, 245 Ga.App. 363, 2000 TCPA Rep. 1153 (Ga.
App. 2000) (en banc) (appeal affirming class cert. and rejecting opt-out)
•Schneider v. Susquehanna Radio Corp., 581 S.E.2d 603, 2003 TCPA Rep. 1203 (Ga. App. 2003)
(affirmed in part and reversed in part and remanded)
North Carolina Cases:
•Prime TV, LLC v. Travelers Ins. Co., 223 F.Supp.2d 744, 2002 TCPA Rep. 1113 (M.D.N.C.
2002) (insurance coverage)
•State of North Carolina ex rel. Cooper v. Debt Mgmt. Foundation Svcs., Inc., 2004 TCPA
Rep. 1313 (E.D.N.C. March 8, 2004) (motion to remand granted)
Virginia Cases:
· Int'l Science & Tech. Inst., Inc. v. Inacom Commun., Inc., 106 F.3d 1146, 1997 TCPA Rep.
1172 (4th Cir. 1997) (order affirming dismissal for lack of subject matter jurisdiction)
· Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 323 F.Supp.2d 709, 2004 TCPA
Rep. 1298 (E.D. Va. July 1, 2004). (order finding duty to defend)
South Carolina Cases:
Agostinelli v. L.M. Comm. of South Carolina, Inc., 2002 TCPA Rep. 1049 (S.C. Magis. Feb. 14, 2002) (judgment)
Agostinelli v. Roberts Mtg. Co., 2002 TCPA Rep. 1054 (S.C. Magis. Mar. 25, 2002) (order and judgment)
Allendale County Bank v. Fax.com, Inc., 2001 TCPA Rep. 1043 (S.C. C.P. Nov. 28, 2001) (TRO to preserve records)
Battery, Inc. v. United Parcel Service, Inc., 2002 TCPA Rep. 1143 (S.C. C.P. Jul 26, 2002) (order granting class cert.
[settlement])
Biggerstaff v. CSJ Consulting and Jay M. Taylor, 2001 TCPA Rep. 1126 (S.C. Magis. Apr. 20, 2001) (default judgment)
Biggerstaff v. Computer Products, 1999 TCPA Rep. 1123 (S.C. Magis. Nov. 17, 1999) (order and judgment)
Biggerstaff v. Low Country Drug Screening, 1999 TCPA Rep. 1124 (S.C. Magis. Nov. 29, 1999) (order and judgment)
Biggerstaff v. Marriott Int'l, Inc., 2001 TCPA Rep. 1129 (S.C. C.P. Feb 20, 2001) (order granting class cert.)
Biggerstaff v. Ramada Inn, Coliseum, 2000 TCPA Rep. 1128 (S.C. C.P. Feb. 3, 2000) (order granting class cert.)
Biggerstaff v. SBS Resort Promotions, Inc., 1999 TCPA Rep. 1125 (S.C. Magis. Dec. 15, 1999) (trial decision)
Biggerstaff v. Voice Power Telecom., Inc., 221 F.Supp.2d 652, 2002 TCPA Rep. 1160 (D.C.S.C. Sep. 13, 2002) (order
remanding cause to state court)
Biggerstaff v. Websiteuniversity.com, Inc., 2001 TCPA Rep. 1025 (S.C. Mag. Mar. 20, 2001) (order granting mtn. to strike
defenses)
Connor v. Cumpston, 2002 TCPA Rep. 1066 (S.C. Magis. Feb. 13, 2002) (order and judgment)
Lipscomb v. 2nd Wind Heating and Air Conditioning, No. 01-CP-40-4272 (S.C.C.P __________) (*status unknown*)
Lipscomb v. Triangle Rent A Car, Inc., No. 01-CP-40-4271 (S.C.C.P. ____________) (*status unknown*)
Lipscomb v. Wal-Mart Stores, Inc., 2003 TCPA Rep. 1183 (S.C.C.P. June 26, 2003) (Order granting class cert [settlement
class])
OLDAPG, Inc f/k/a Atlantic Pub. Group, Inc. v. New England Bus. Svcs.,, 2003 TCPA 1195 (S.C.C.P. ______ 2003) (class
cert. [settlement class])
Syrett v. Allstate Ins. Co., 2003 TCPA Rep. 1215 (S.C.C.P. Aug. 6, 2003) (order granting class cert [settlement class])
WPS, Inc. v. Lobel Fin., Inc., 2001 TCPA Rep. 1130 (S.C. C.P. Oct. 15, 2001) (order granting class certification)
Wal-Mart Stores, Inc. v. Lipscomb d/b/a Am. Amusements, 2003 TCPA Rep. 1212 (D.S.C. Mar. 10, 2003) (Order dismission
DJ action
What If …S.714 Had Not
Passed?
• NAR testified that the FCC rules would
have caused REALTORS to create and store
66 million permission forms to support the
6 million home sales last year.
• US Chamber estimated the FCC regulations
would have cost the average small business
$5,000 the first year and $3,000 every year
thereafter.
The NAR Action Center
www.naractioncenter.com
The REALTOR Location to
Take Grassroots Action
The NAR Action Center
www.naractioncenter.com
The NAR Action Center
In just a few clicks of the
computer mouse you can join
tens of thousands of other
REALTORS across America in
grassroots communications to
Congress.
Registration is easy, and with
your NRDS # it is VERY Quick
RESPONDING TO A CALL FOR ACTION
It Takes Just Seconds to Respond.
The Outcome Can Last A Lifetime
• Using NAR’s Action Center is
the easiest way for you to
personally influence Congress
– from your home or office
• NAR will email a Call for Action
(CFA) requesting your
immediate response on an
important real estate or
housing issue.
• NAR Action Center gives you a
Pre-written letter to send to
your Representative or
Senators in just three clicks.
NC, SC, GA & VA
REALTORS® …
• Membership: NC 30,455 … SC 13,520 … GA
30,179 … VA 31,876
• Registered with Action Center as of July ’05: NC
6,222 … SC 2,287 …GA 5,641 … VA 5,731
• Average response to Call-to-Action:
NC 760.2 (2.5%), SC 365.2 (2.7%),
GA 627.4 (2.08%) and VA 689.0 (2.19%)
NAR has published a “Do-Not-Call, Do-Not-Fax, DoNot-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