Table of Contents
Making Cold Calls
The Telephone Consumer Protection Act (TCPA)
In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) in an effort to address a growing number of consumer complaints about telephone marketing calls. The TCPA restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The rules apply to common carriers and telemarketers.
In 1992, the Federal Communication Commission (FCC) adopted rules to implement the TCPA. Under FCC rules, entities making telephone solicitations were required to have procedures for maintaining company-specific do-not-call lists. On July 3, 2003, the FCC revised its TCPA rules to establish, in coordination with the Federal Trade
Commission (FTC), a National Do-Not-Call Registry.
The National registry covers all telemarketers (with the exception of certain nonprofit organizations) and applies to both interstate (between) and intrastate (within) calls. The registry went into effect on October 1, 2003, and is administered by the FTC. Starting January 1, 2005, telemarketers and sellers are required to search the registry at least once every 31 days and drop from their call lists the phone numbers of consumers who have registered.
The National Do Not Call Registry covers intrastate telemarketing calls, like those commonly made by real estate agents, under the FCC’s rules. You can find information on the FCC regulations at http://www.fcc.gov/cgb/donotcall/. All sellers covered by the FCC rules must subscribe to the list before they call, or cause a telemarketer to call, any consumer within that area code, even those consumers whose telephone numbers are not on the registry. The only exceptions are for sellers who call only consumers with which they have an existing business relationship or written agreement to call, and do not access the National registry for any other purpose.
These provisions make any cold calling without access to the Do Not Call Registry an extremely risky undertaking. It’s against the law to call (or cause a telemarketer to call) any number on the Registry (unless the seller has an established business relationship with the consumer whose number is being called, or the consumer has given written agreement to be called). It is also against the law for a seller to call (or cause a telemarketer to call) any person whose number is within a given area code unless the seller first has subscribed to and accessed the portion of the Registry that includes numbers within that area code, and paid the annual fee, if required.
Signing up for the Do Not Call Registry list entitles the subscriber to data for up to five area codes for free. If you want more than five area codes, the annual fee is $62 per area code of data, with a maximum annual fee of $17,050 for the entire U.S. database. Fees are paid annually.
Companies that have subscribed, and paid the appropriate fee (if any), are allowed to check a small number of telephone numbers (10 or less) at a time via interactive Internet pages. This makes it easy for small volume callers like most real estate agents to comply with the do not call requirements without having to download a large list of all registered telephone numbers within a particular area.
Fortunately, there are “safe harbor” provisions that cover inadvertent mistakes. If a seller or telemarketer can show that, as part of its routine business practice, it meets all the requirements of the safe harbor, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the Registry. To meet the safe harbor requirements, the seller or telemarketer must demonstrate that:
- it has written procedures to comply with the do not call requirements
- it trains its personnel in those procedures
- it monitors and enforces compliance with these procedures
- it maintains a company-specific list of telephone numbers that it may not call
- it accesses the National Registry no more than 31 days (starting January 1, 2005) before calling any consumer, and maintains records documenting this process
- any call made in violation of the do not call rules was the result of an error.
Data for up to five area codes is free. The annual fee is $62 per area code of data (after five), with a maximum annual fee of $17,050 for the entire U.S. database.
return to top Existing Business Relationship Exception
A telemarketer or seller may call a consumer with whom it has an established business relationship for up to 18 months after the consumer's last purchase, delivery, or payment - even if the consumer's number is on the National Do Not Call Registry. In addition, a company may call a consumer for up to three months after the consumer makes an inquiry or submits an application to the company. These rules ease the burden of Do Not Call on the practice of real estate by allowing agents to call buyers and seller who have done business with the agent’s company. They do not, however, help when calling buyers or sellers who have not done business with your company.
There is a tradition in real estate of cold calling sellers with expired listings and FSBOs. These practices were immediately called into question when the Do Not Call Registry was implemented in January of 2005. As a result, the National Association of REALTORS® petitioned the FCC for clarification regarding expired listings and FSBOs.
On February 18, 2005, the Federal Communications Commission (FCC) issued an Order addressing issues raised by NAR. According to the FCC, a real estate professional representing a potential buyer may call a FSBO so long as the purpose of the call is to discuss the potential sale of the property to the buyer. An agent may not cold call a FSBO on the Do Not Call Registry List for the purpose of soliciting a listing. The FCC also declined to exempt from the Do Not Call Registry rules any calls to expired listings. These rules are simple applications of the established business relationship exception.