NAR
NEWS
THE
SAGA CONTINUES: BE ADVISED OF THE FCC RULES ON FAX ADVERTISEMENTS
The National Association of REALTORS® sent out the
following notification concerning fax advertisements:
As
part of its newly released do-not-call rule, the FCC
has strictly limited the use of fax advertisements in
a way that may affect many businesses and trade associations.
The new rule does not allow anyone to send an unsolicited
fax advertisement even if the recipient of the fax has
a pre-existing business relationship with the sender
(such as membership in a trade association). According
to the rule, fax advertisements can only be sent if
the sender first receives a written, signed statement
from the recipient giving the sender permission to send
fax advertisements. The rule applies only to faxed advertisements,
not informational faxes. In other words, the fax is
only problematic if it discusses a product or service
and is intended to get the recipient to pay for that
product or service. Informational faxes that do not
relate to offerings of products and services are not
covered by the rule. The rule will be enforced when
the recipient of a fax either files a lawsuit or files
a complaint with the FCC.
ACTION
ITEMS:
In
the next few days, NAR will submit a petition of reconsideration
to the FCC objecting to trade association applicability.
Once the petition is filed we will issue a call for
action and ask members/state associations/local boards
to write to the FCC in support of the NAR petition for
reconsideration of the Fax rule. If that fails we will
seek from the FCC an adequate transition period giving
NAR sufficient time to communicate with members and
to seek member permission to send fax advertisements
during membership renewal and registration. Doing this
would fully address the association's compliance responsibilities
for sending fax advertisements to those members.
The
FCC ordered a delay in the implementation of the "do-not-fax"
rule until January 1, 2005.
For
additional information, visit the National Association
of REALTORS® website at www.realtors.org.
Taken from IAR Legislative Express
- 7/31/03
FEDERAL
COMMUNICATIONS COMMISSION ISSUES RULES EXPANDING NATIONAL
"DO-NOT-CALL" REGISTRY
The
cold-calling activities of real estate professionals
after October 1, 2003 will need to comply with the requirements
of the new federal do-not-call registry, based on rules
issued by the Federal Communications Commission ("FCC").
The FCC has broadened the reach of the federal "do-not-call"
registry originally created by the Federal Trade Commission
("FTC") to now cover intrastate telemarketing
as well as the interstate telemarketing calls covered
by the FTC rule. While the federal do-not-call registry
contains exemptions, these do not cover the telemarketing
activities of real estate professionals. The federal
rules permit states to adopt more stringent telemarketing
rules, but any state telemarketing rules which are less
restrictive than the federal rules are preempted and
superceded by the federal rules. Therefore, any exemptions
found in state laws for real estate professionals are
now eliminated and compliance with the federal "do-not-call"
registry is now required by real estate professionals
who engage in telemarketing.
DO
NOT CALL REGISTRY
The
Rules now make it illegal to call a residential telephone
subscriber with a "telephone solicitation"
if the residential telephone subscriber has registered
his or her number with the federal do-not-call registry.
A "telephone solicitation" is defined as "a
telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person."
The FCC's discussion of the Rules makes it clear that
the cold-calling activities of a real estate professional
fall within this definition.
The
FCC will use the same do-not-call registry that was
funded by Congress in the Act. Enforcement efforts by
the agencies will begin on October 1, 2003. Consumers
can request that their number be added to the registry
via the Internet or by calling a toll-free number, and
the registration will be effective for five years. There
is no charge to consumers for registering their number.
Business must obtain the list and "scrub"
their list every three months. Up to five area codes
of registered numbers are provided free of charge to
a business; businesses requesting more area codes will
be required to pay a fee.
There
are three exceptions to the do-not-call registry: first,
if the caller has received the express permission of
the consumer; second, if an "established business
relationship" exists between the parties; and third,
calls may be made by or on behalf of a tax-exempt nonprofit
organization. An "established business relationship"
is one between a business and a consumer with whom it
has an established business relationship for up to 18
months after the consumer's last purchase, delivery,
or payment or a consumer whom, within the last three
months, made an inquiry to the business. The established
business relationship exception is terminated if a consumer
requests to be placed on the business's company-specific
do-not-call list, even if the parties continue to do
business.
A
safe harbor provision exists in the Rules for a business
who inadvertently calls a consumer who is registered
in the do-not-call registry. A business will not be
liable if it has obtained the consumer's prior "express"
written permission that this particular business may
contact the consumer at the number listed in the agreement.
A business will also not be liable if it calls a consumer
with which it has a personal relationship, as defined
in the Rules. Finally, a business will not be liable
if it can demonstrate that the call was made as the
result of error. In order to demonstrate that the call
was made as a result of error, the business will need
to show the following regular business practices: written
procedures for compliance with the Rules; train personnel
in compliance with the Rules; maintain a list of numbers
that should not be called; update its do-not-call list
at least every three months; and assure that the do-not-call
list is not used for any other purpose other than the
business's compliance with the Rules.
OTHER
NEW PROVISIONS
This
section will briefly highlight new additions to the
Rules other than the do-not-call provisions.
The
Rules now prohibit blocking the transmission of company
information through a caller identification service.
The Rules further require that a business must provide
a number in the called ID where consumers can call the
business during normal business hours and make a business-specific
do-not-call request.
The
Rules now impose additional requirements upon facsimile
advertisements. First, the Rules expand the definition
of when a "facsimile broadcaster" will be
found liable for violating the Rules. Second, the Rules
set forth requirements of the information which must
appear on a facsimile transmission, particularly a facsimile
transmission from a facsimile broadcaster.
Telemarketers
must disconnect an unanswered telemarketing call in
at least 15 seconds or four rings.
The
Rules also address "abandoned calls", which
occur when a telemarketer uses an automated calling
system and the system fails to connect the consumer
to a live operator or automated identification message
within two seconds after the consumer answers the phone.
A telemarketer is only permitted to abandon three percent
of all calls made over a 30-day period.
WHAT
IS NAR DOING TO HELP?
NAR
has launched a campaign to address this FCC ruling that
pre-empts a state's ability to enact and enforce their
own Do-Not-Call statute. This campaign will include
the following activities.
