How to deal with Do Not Call, Do Not FAX and Can Spam

1. Regional AE Conference Wilmington, North CarolinaJuly 26, 2005 REALTORS The Do-Not-Call Law Means You Telemarketing e-Mailing Faxing

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 . . .

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(effectiveOctober 16, 2003)

Calls may only be made between the hours of8:00 a.m. and 9:00 p.m.

Callers mustdisclose all material informationabout the goods or services they are offering and the terms of the sale.

Companies are required to maintain their own company-specificdo-not-call listand honor consumer requests to be placed on the list.

Companies are required to havewritten policieson maintaining their do-not-call lists.

Congress gave the FTC a mandate to create aNational Do-Not-Call Registryfor residential numbers.

Telemarketersarerequired to scrubtheir calling lists against the Registry at least once every month.

Telemarketers and sellers areprohibited from callinga phone number listed on the Registry (exceptions exist).

A business relationship based upon atransactionbetween the company and the consumer within the previous 18 months.

Or, within 3 months of aninquiry , application or request by the consumer.

Prior written permissionto call.

Unsolicitedautodialedorprerecordedcalls 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.

Charities

Tax-exempt non-profit organizations (c)(3) not (C)(6)

Political campaigns

Surveys

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.

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.

You may check up to 100 numbers (per log-in) interactively in groups of ten numbers at a time.

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

The FTC requires telemarketers to transmit their telephone number and, if possible, their name to consumers Caller ID services for all interstate calls.

A telemarketers use of calling equipment that cant 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.

You will not be held liable if you have in place and practice the following seven point 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.

There is no number limit to the "safe harbor" protections.However, note that safe harbor is for"inadvertent callsto 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.

Prohibits calls toFSBOswhose 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 callexpired listings(with whom they do NOT have an existing business relationship) orFSBOsfor the purpose of offering services if these numbers are on the Do-Not-Call list.

Y our 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.

In issuing this Order, the FCC made a strong statement indicating its unwillingness to consider further exemptions from the Do-Not-Call rules.

AReasonable Expectation of a call backis 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 andin 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.

85,000,000 numbers have been registeredby 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.

A telemarketers right to free speech is not violated by the governments do-not-call list.

The do-not-call registry directly advances governments important interest in safeguarding personal privacy.

www.donotcall.gov

by phone: 1-888-382-1222.

Consumers must report the date of the call andeitherthe name or the phone number of the company that called.

Telemarketers who disregard the registry may be fined up to $11,000 per call.

March 2005 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)

Dynasty had been warned in December of 2003

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.

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).

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

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.

CAN SPAMdoes not banany solicited or unsolicited e-mails. (Congress authorized but the FTC did not create a do-not-spam registry.)

CAN SPAMidentifies practices to be followedby those who send commercial e-mails originating in the US.

CAN SPAM bans certainfraudulent or deceptive practicesand criminalizes techniques used by spammers to avoid detection.

CAN SPAM pre-empts state spam lawsexceptportions of state law that prohibitfalsity or deceptionin any e-mail or attachment.

Any electronic mail message theprimary purposeof which is the commercial advertisement or promotion of a commercial product or service.

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.

1) E-mail contentsolely advertises or promotes a product or serviceit is commercial.

2) E-mail containsboth commercial and transactional or relationship contentit is commercial if either:

a) recipient deems from the subject line that the e-mail 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 containsboth commercial and non-commercial contentit 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.

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 e-mail messages. The opt-out address must remain active for 30 days after the transmission of the e-mail (dont let your mail box fill up) and opt-outs must be honored within 10 days.

Federal and State Regulators

ISPs (may sue for injunctive relief and damages)

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.

$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

The Federal Trade Commission gave limited endorsement to offering cash rewards to people who help track down e-mail spammers

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 persons e-mail addresses to anyone else for any purpose.

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.

June 24 ththe Senate passed S.714

June 27 ththe FCC issued a stay of the fax rules until January 9, 2006.

June 28 ththe House passed S.714

July 9 thPresident Bush signed S.714 into law

Telephone Consumer Protection Act of 1991 (TCPA) prohibits the sending of unsolicited facsimile advertisements to a business or residence without theexpress permission or invitationof the recipient.

PL 102-243 bans sending unsolicited commercial faxes unless there exists an existing business relationship with the recipient.

REALTOR to client

REALTOR to REALTOR

REALTOR Association to REALTOR

1) express written permission from recipient,

2) the recipients specified fax number

3) signature of the fax recipient

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 thatallunsolicited 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 long-distance 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 areNOTpreempted.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.

$500 per fax

$1500 per blast fax to strangers

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

Charter One Bank $1,800,000

Hooters $12,000,000

Fax.com $5,380,000

Seventeen Motors $7,000,000

Visitwww.tcpalaw.com

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)

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.

www.naractioncenter.com

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Using NARs Action Center is the easiest wayfor you to personally influence Congress from your home or office

NAR will email aCall 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.

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, Do-Not-E-mail Toolkit to provide REALTORS with briefing materialand 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 800/874-6500Request item number:186-100.

Thank You

Documents

How to deal with Do Not Call, Do Not FAX and Can Spam