Prudential, Americana
Group, REALTORS (“Americana”)
All
Americana Salespersons and their Licensed Assistants will be required to comply
with the Federal Law regarding telephone solicitations. This law applies to all
solicitation calls made for Listings, for Buyers, to For Sale By Owners and
Expireds, etc. The Federal Trade Commission (FTC) issued the amended
Telemarketing Sales Rule (TSR) on January 29, 2003. Like the original TSR issued
in 1995, the amended Rule gives effect to the Telemarketing and Consumer Fraud
and Abuse Prevention Act. This legislation gives the FTC and state attorneys
general law enforcement tools to combat telemarketing fraud, give consumers
added privacy protections and defenses against unscrupulous telemarketers, and
help consumers tell the difference between fraudulent and legitimate
telemarketing.
a)
Enforcement of the national do-not-call rules begins on October 1, 2003.
The Federal Trade Commission (“FTC”) will maintain a national registry of
residential telephone numbers and cell phone numbers (the “National Registry”)
to which no telephone solicitation call may be placed. Business numbers may not
be listed with the National Registry. A telephone solicitation is defined by
the federal rules as the initiation of a telephone call for the purpose of
encouraging “the purchase or rental of, or investment in, property, goods, or
services”. In other words, just about any call made by a real estate
professional in the course of business is going to fit the definition of a
telephone solicitation. Even calling a person to ask if they “know of anyone”
who is looking to buy or sell is a solicitation under the federal rules.
b)
Under the federal rules, a person
may not make a telephone solicitation call to a number on the National Registry
unless one of the following exemptions exist:
(1)
Prior Express
Permission. A person may make a telephone solicitation to a number on the
National Registry if he or she has prior express permission from the recipient
to make the contact. This permission must be in writing and must be signed by
the call recipient before the telephone call is placed. Note that a request by
the call recipient that you stop calling immediately eliminates permission to
make any further calls.
(2)
Established
Business Relationship. A person may make a telephone solicitation to a number
on the National Registry if he or she has an established business relationship
with the call recipient. By definition in the federal rules, a broker or
salesperson has an “established business relationship” with the recipient for 18
months after a purchase or transaction between the caller and recipient, or 3
months after the recipient’s “inquiry or application” to the seller’s company.
For a real estate professional, anything other than an actual purchase or sale
is only an “inquiry or application” giving a 3 month time period. Once again, a
request by the call recipient that you stop calling immediately eliminates the
established business relationship for purposes of the do-not-call rules.
(3)
Personal
Relationship. A person may make a telephone solicitation to a number on the
National Registry if he or she has a personal relationship with the call
recipient. A personal relationship encompasses any person that is a “family
member, friend or acquaintance of the telemarketer making the call.” When
determining whether a person is a “friend” or “acquaintance”, federal
authorities will consider “whether a reasonable consumer would expect calls from
such a person because they have a close or, at least, firsthand relationship.”
If the consumer does not consider the relationship sufficiently personal to have
expected a call, or would object to a call, from the broker or salesperson, the
FCC will be reluctant to find that this exemption applies. Note that a
firsthand relationship may follow after a personal meeting (e.g., door-knocking)
in which the recipient agrees that you may contact him or her with additional
information.
(4)
Mistake. A
call mistakenly placed to a number on the National Registry may be excused if
the company maintains a do-not-call policy and trains its agents and salesperson
accordingly. Americana will maintain this policy and train its agents and
brokers so that, if a call is mistakenly placed, Americana and the salesperson
may take advantage of this exemption from enforcement action.
c)
It is important to note that a person who lists a number with the
National Registry has expressed his or her aversion to telephone solicitations.
The exemptions listed above should thus be used to contact a number on the
National Registry only when an exemption clearly applies. Contacting someone on
the list risks not only the monetary fine under the federal rules, but just as
important risks the good will of both the agent and Americana.
a)
Any person making a telephone solicitation must provide the person called
with the following information:
(1)
The name of the
individual caller;
(2)
The name of the
person or entity on whose behalf the call is being made, i.e. Prudential,
Americana Group, REALTORS®; and
(3)
A telephone
number or address at which the person or entity may be contacted.
b)
Brokers and salespersons may not block caller ID when marketing over the
telephone.
c)
Brokers and salespersons must allow a phone to ring for 15 seconds or
four rings before disconnecting any unanswered call.
d)
The federal regulations place significant restrictions on the use of
artificial voice solicitations and the use of predictive dialers. Because of
the limited use of these technologies at the time of the implementation of the
federal rules, it is Americana’s policy that its salespersons will discontinue
any use of artificial voice and predictive dialers for the purposes of telephone
solicitation.
a)
Americana’s
salespersons and employees shall have access at
www.donotcall.gov to its
do-not-call list maintained by the United States Government. Access may require
registration and the input of a password specific to your registration with that
service of the Government.
b)
If any Americana – employee or licensee - intends to make a
telephone solicitation, he or she must check the number against the federal
do-not-call list. If the number appears on the do-not-call list, you shall
not placed that call unless an exemption clearly applies.
a)
Until January 1, 2005, unsolicited faxed advertisements may be sent to a
fax machine only if 1) the sender has an established business relationship with
the recipient; or 2) the sender has prior express permission from the
recipient. After January 1, 2005, a person must obtain express, written
permission before faxed advertisements may be sent to a potential customer.
5.
AMERICANA SPECIFIC DO NOT CALL REQUESTS
a)
The federal regulations also require each company to maintain a record of
anyone who specifically requests that the company refrain from making further
calls to that number. These “seller-specific” do-not-call requests must be
honored for five years from the time the request is made. The FCC states that
seller-businesses will have a maximum of 30 days to comply with a specific
do-not-call request. Americana has been maintaining such a list, this
list is available in each office and may be merged with the do-not-call list.
b)
When any salesperson or employee of Americana receives a specific
do-not-call request, the call recipient’s number should be forwarded immediately
to an office manager (via email or actual delivery) on the designated
Americana do-not-call request form, along with the date the request was
made.
a)
Americana, will maintain a hard copy list of all numbers to which
telephone solicitations are prohibited. This list shall consist of the
applicable national, state and seller-specific do-not-call lists.
b)
Licensees are instructed to maintain their own list via the FTC’s website
at
www.ftc.gov.
a)
The federal government may impose a civil penalty for violation of these
marketing rules up to $11,000.00 per violation. Each individual call in
violation of these rules may constitute a separate violation.
b)
It is the policy of Americana that any salesperson or employee in
violation of these rules will be personally responsible for the payment of any
fine, penalty or judgment imposed, or damages awarded. This liability includes
all fines, penalties, damages or judgments against Americana; that is the
salesperson or employee who violates these rules will indemnify Americana for
any and all costs related to their violation. These expenses do not fall under
our or any E&O insurance policy.
a)
Can I call a number listed in a “for sale by owner” advertisement if the
number is on the do-not-call list (DNC)?
The answer depends upon
the reason for the call. If you represent a buyer who wants to contact the FSBO
for the purposes of inquiring in some way about purchasing the property, the
call is permissible. If the purpose of the call is to attempt to convince the
FSBO that he/she ought to list the property with Americana, the answer is “no”.
A FSBO’s advertisement does not constitute a “signed” written agreement allowing
such contact, as required under the rules, nor is the purpose for the call
related to the purpose for the advertisement – the FSBO is trying to sell his
property, not list it with Americana or any other broker. FSBOs on the DNC
should be contacted in person, by email, or some means other than telephone.
b)
Can I make a call to a referral if the person’s number is on the DNC?
If your only contact
with the person is by referral (i.e., you have never met the person), you may
not make the call. Forward your telephone number or business card to the person
who gave you the referral and ask that the prospect contact you directly.
c)
Can I get permission to contact someone on the DNC through the use of my
open house registry?
Yes, as long as your
registry contains language by which the prospect expressly agrees that you can
contact him or her by telephone. The prospect must write down their telephone
number and sign the statement giving permission for the contact. Place on the
open house registry the words “by signing this registry and giving my telephone
number, I give Prudential, Americana Group REALTORS® permission to contact me by
telephone regarding the purchase or sale of real estate.”
d)
Can I telephone someone whose listing contract has expired with another
brokerage company, and whose number is on the DNC?
No. If none of the
exemptions apply, you must contact this homeowner in person, by letter, e-mail,
or some means other than the residential telephone or cell phone number on the
DNC.
e)
How can I farm specific neighborhoods if many of the residents’ telephone
numbers are on the DNC?
If the numbers are on
the DNC and no exemption applies, you can always work the area in person.
Remember; once you have made a friend or acquaintance by this or some other
method, you can make calls to the number – but the recipient must reasonably
expect a call from you. The key is to practice effective contact management.
f)
If I enter into a listing agreement with someone and cannot sell their
house during the term of the agreement, can I call them under the established
business relationship exemption if their number is on the DNC?
You have an established
business relationship under these circumstances, and you can make the call. You
will be able to make this call for 90 days under the business relationship
exemption, and may also be able to call under the acquaintance exemption,
depending on circumstances, which is not limited in time. Despite these
exemptions, however, you should stop calling any time the prospect requests that
you do so.
g)
What if I realize I’ve called a number on the DNC by mistake?
If you make that
determination before you begin a sales pitch, you can simply tell the recipient
that you made a mistake and apologize. In that way you have not commenced a
solicitation. If the recipient makes you aware of your mistake once you have
started the pitch, you should apologize and express you intent not to repeat the
mistake. Although the solicitation is a violation, an apologetic tone may
circumvent further trouble.
h)
May I return calls to persons on the DNC if I receive their contact
information through the “up desk”, or off my web site, or in a response to a
mailer, flyer or advertisement?
Yes. You are not making
a solicitation call when the individual calls or contacts you first to request
information.
i)
I understand there is an exemption for persons taking surveys over the
telephone. Can agents fit within that exemption?
The exemption applies
only if the true purpose of the call is to take a survey, which means,
effectively, that a real estate agent may not attempt to contact persons on the
DNC by trying to conduct a “survey.” The FCC will not tolerate a survey that is
pretence for a marketing call.
j)
May I call a list of numbers on the DNC if I purchase the list from a
Survey Company?
If your only contact
with the person is by purchasing the list from a Survey Company (i.e., you have
never met the potential client), you may not make the call. The Survey Company
will have to verify to you, if they have secured, in writing, your permission to
call the DNC registrants prior to you making any call to DNC registrants.
k)
I am a manager. Can I recruit a potential sales associate whose number
is on the DNC?
First, business numbers
are not on the DNC, and that is where you are most likely to call the
individual. Even if you are calling a number on the DNC, if the true purpose of
your call is recruitment, then you are not engaged in telephone solicitation and
you may make the call.
l)
I understand that I might be able to contact a potential customer if the
customer has an established business relationship with one of our affiliated
companies. Under what circumstances is that contact permissible?
The regulations say that
an affiliated company may call if the customer might “reasonable expect” the
call. Customer expectations, in the FCC’s view, are based on the identity of
the affiliate and the type of goods or services offered. If the affiliated
company offers goods or services that are related to a house sale, we believe
the affiliated company may call. Be aware, however, that the customer’s
reaction will determine whether the call was correctly placed.
a)
Unsolicited Calls from Consumers
Any call from a consumer that is not placed in response to a solicitation by the
seller, charitable organization, or telemarketer is exempt from coverage.
Because the consumer initiates the call without any inducement from the seller
or telemarketer, the call is not considered part of a telemarketing plan,
program, or campaign conducted to sell goods or services or to induce a
charitable contribution. Some examples include calls to:
(1)
obtain information
(2)
Most
Calls Responding to General Media Advertising - The Rule generally does not
apply to consumer calls made in response to general media advertising including:
television commercials; infomercials; home shopping programs; print
advertisements in magazines, newspapers, the Yellow Pages, or similar general
directories; radio ads; banner ads on the Internet; and other forms of mass
media advertising and solicitation. Nevertheless, if a seller or telemarketer “upsells”
a consumer during a call initiated by the consumer, the upsell is covered by the
Rule. In addition, the Rule does cover calls from consumers in response to
general media advertisements relating to business opportunities not covered by
the Franchise Rule, credit card loss protection, credit repair, recovery
services, advance-fee loans, or investment opportunities.
(3)
Some
Calls Responding to Direct Mail Advertising Are Exempt
(4)
Direct
mail advertising includes, but is not limited to, postcards, flyers, door
hangers, brochures, “certificates,” letters, email, facsimile transmissions, or
similar methods of delivery sent to someone urging a call to a specified
telephone number regarding an offer of some sort. For purposes of the Rule,
“direct mail” is not limited to messages sent via conventional mail delivery or
private couriers. The exemption for calls responding to direct mail advertising
that meets the Rule’s requirements is available both to telemarketers soliciting
sales of goods or services and to telefunders soliciting charitable
contributions.
(5)
Sales
solicitations: Generally, consumer calls in response to a direct mail
solicitation that clearly, conspicuously, and truthfully makes the disclosures
required by the Rule are exempt from the Rule. These disclosures are: cost and
quantity; material restrictions, limitations or conditions; any “no-refund”
policy; and, if the offer includes a prize promotion, credit card loss
protection, or a negative option feature, the information about any of those
elements of the offer required by the Rule. If you are a seller or telemarketer
who uses direct mail, you may use this exemption only if your direct mail
solicitation messages make the disclosures required by Section 310.3(a)(1) of
the Rule clearly, conspicuously, and truthfully.
(6)
The
exemption is for sales calls elicited by direct mail advertising that truthfully
provides a consumer with the specific information required under the Rule. In
the case of charitable solicitation calls elicited by direct mail advertising,
the exemption applies to direct mail advertising that conscientiously avoids the
prohibited misrepresentations.
a)
Solicitation calls to residences may be made from 9AM to 8PM ONLY.
b)
The Americana Salesperson must state his/her name, the Americana Group
name and provide the business telephone number to the person being called during
the initial part of the conversation.
c)
Should any party contacted request NOT TO BE CALLED AGAIN, the
salesperson must:
(1)
Make a written
record of that request including the date, person’s name and person’s phone
number wishing not to be called in the future.
(2)
Fax a copy of
that written record to the Americana Executive Offices Attention: Executive
Secretary.
d)
The Americana Corporate Office makes available the No Call Registry to
its salespersons, which will be distributed to each office on a regular basis
and made available by the Brokerage Office Assistant in a designated place.
e)
Anyone who violates the State Law, Privately Maintained No Call List or
the Federal Rule is subject to civil penalties of (federal up to $11,000 per
violation). In addition, violators may be subject to nationwide injunctions
that prohibit certain conduct, and may be required to pay redress to injured
consumers.
a)
When using the telephone for solicitation or prospecting purposes, the
Salesperson shall abide by ethical business practices and all applicable laws
and always identify himself and Americana Group immediately.
b)
City directories, reverse cross reference directories and ownership
records (TaxStar) are maintained in each sales office. These records are not to
be removed from the offices to which they are assigned.
c)
Subject to this Section: Any Salesperson may work Expireds or FSBOs
provided that they do not undercut another Americana Salesperson’s commission in
order to induce that owner to do business with them. If it is determined to
company’s satisfaction that a Salesperson has undercut another Americana
Salesperson’s fee, then Americana has the right to compensate the damaged
Salesperson at the injuring parties expense or collect their fair share of said
fee.
d)
The Salesperson must quote a full seven percent (7%) brokerage fee when
cold calling.
a)
The Brokerage Administrative Rep will send to the Salesperson a one (1)
week notice prior to expiration of their listing.
b)
Should the property not be re-listed or extended, a notice will be given
to the Branch Manager by the Brokerage Administrative Rep who will assist the
Salesperson in re-listing the property or recommend that it be referred to
another Salesperson in the office with the referring Salesperson receiving a
twenty percent (20%) referral fee.
c)
Should the property not be re-listed, any Salesperson may contact the
Seller and try to list the property as soon as it actually expires.
d)
Should a Salesperson contact a Seller while another Americana Salesperson
is at the property giving a listing presentation, that Salesperson will politely
and immediately terminate that conversation and re-contact that Seller at a
later time to find out whether the property has been listed. This application
of the “Golden Rule” will provide for a better and more cooperative relationship
among all Salespersons.