Question: Will you refresh my memory about the Do-Not-Call Registry?

Answer: The Telephone Consumer Protection Act (TCPA) created the Do-Not-Call Registry and the Federal Communications Commission (FCC) enforces the same. The Do-Not-Call Registry is a nationwide database where consumers place their telephone numbers indicating that they do not wish to be contacted by telemarketers. The Federal Trade Commission manages the database and also responds to complaints about prohibited calls to those number on the Do-Not-Call Registry. Simply put, if a consumer’s telephone number is on the Registry, they must not be contacted for telemarketing purposes. There are a couple exemptions to this rule:

• Has the consumer reached out to you to inquire about your services? If so, that consent exists for three months beginning from the date the consumer makes the inquiry. You would be able to return calls to those interested consumers even if their telephone number is on the Registry. However, if you contact this consumer and they then make a specific request for no further contact from you or your company, you must abide by that request, and add their information to your company specific do-no-call list.
• Do you have express written permission from the consumer to contact them? If so, you may contact them even if their number is on the Registry. That permission must be in writing and include the person’s name, signature and telephone number. The consumer can revoke that consent at any time.

A common question regarding the Registry relates to FSBO or expired listings. If you are representing a buyer and you contact a FSBO listing, that would not be considered a telemarketing call because YOU are not offering any services or products. But, you must be calling on behalf of your actual buyer client who is actually interested in the listing. However, if you are calling an owner who is advertising a FSBO listing, or are reaching out to an owner whose listing with another agent has expired, you cannot call that owner if their telephone number is on the Registry AND the purpose of your call is to offer your services, such as listing the property. A possible exception in this scenario is where your company had the expired listing, and you fall under the existing business relationship exemption.

Please note, if you are making pre-recorded/artificial messages or using an automatic telephone dialing system (ATDS) you must have express written consent from the consumer that clearly and conspicuously discloses that the purpose of the consent is to authorize you to place prerecorded calls to that consumer. You cannot require that the consumer give this consent as a condition of purchasing a good or service. Finally, you must obtain that consent directly from the consumer – you cannot place calls with prerecorded messages to consumers whose information you obtained from third parties.

Here are some best practices to keep in mind relating to telemarketing:

• The best way to protect yourself from violations of the TCPA is to obtain prior express written consent from the consumer and make sure you retain those records.
• Have an office policy in place that addresses the Do-Not-Call Registry and the TCPA. Train your agents and staff on that policy and make sure it includes maintaining and updating a list of consumers with express consent along with consumers that have opted out of contact from your office, through a company specific do-not-call list.
• Even if you receive a curated list of leads, you must cross check those names and numbers with the Registry before calling or texting.
• Review the terms of service with your vendors that you use to obtain telephone numbers or provide automated calls and texts. Will those vendors indemnify you and your office from potential TCPA liability?