Federal regulations prohibit businesses from making telephone solicitations to residential phone numbers that are contained in the federal Do Not Call Registry (DNC Registry). The DNC Registry became effective in October of 2003 and the laws creating the DNC Registry preempt all less restrictive state laws.

The DNC rules define a telephone solicitation as a "telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person."

Every office should maintain specific Do Not Call lists for telephone solicitations, thus protecting residential subscribers who request that they not be called for unwanted solicitations. If an associate places a call, and the person requests that they not be called again, the name and number of that person must be added to the Do Not Call list. All associates should be required to check this list before making solicitation calls.

The DNC rules regulate calls to "for sale by owner" (FSBO) properties. A real estate professional may call a FSBO seller on behalf of a buyer client, as long as the real estate professional is not also trying to entice the FSBO seller to list the property with the real estate professional. However, a real estate professional cannot call a FSBO seller, whose number is on the DNC Registry to entice the seller to list the property with the real estate professional, since such a call involves a telephone solicitation.

A listing broker can call prior clients with expired listings for up to 18 months after the listing has expired because the listing broker has an established business relationship with the seller. If a buyer's representative has entered into a representation agreement with a consumer, then the buyer's representative can also call the consumer for 18 months following the expiration of the representation agreement. All other real estate professionals will need to consult the DNC Registry prior to calling expired listings, unless another exception applies (such as the real estate professional receiving an inquiry from a consumer).

When gathering consumers' consents to receive calls, the brokerage needs to give the consumer a reasonable expectation of receiving a return call. For example, if a broker collects phone numbers on an open house sign-in sheet with the intention of later making "follow up" phone calls to those who sign in, the brokerage should include notice on the sign-in sheet alerting visitors that they are consenting to receive a follow up call. This might be done by providing space on the sign in sheet for visitors to include their name, telephone number, and a box next to each line allowing the visitors to check "yes" if they would like to receive a follow-up call. Similarly, when using a phone number "call capture" device to record phone numbers of calls made to a brokerage firm, the brokerage firm should advise consumers on the recorded message that they can expect a return phone call from the brokerage and offer the consumer the ability to opt out of receiving a return call.

So if you're making calls looking for those buyers and sellers, be sure to refresh your memory with the Do Not Call guidelines.

See you next week.

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