The Realtor® Association of Greater Fort Lauderdale, Inc. The Realtor® Association of Greater Fort Lauderdale, Inc.The federal government and many states have passed laws that place restrictions on calls made to residential phone numbers if the purpose of the call is to sell a product or service.
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.
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, 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 policy in response to a request within a "reasonable amount of time following the consumer's request". In addition, FCC rules give a company thirty 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. Nevertheless, the faster you send the policy in response to a request, the better your chances may be of avoiding a lawsuit.
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 attached below. Note a more complete policy detailing your company's compliance with the federal "Do Not Call Registry" is recommended, but not required- click here to learn how to create a more complete policy and so qualify for the "safe harbor" provision in the federal rules.