DATCP Telephone Solicitation Rules

   REALTORS^® may risk penalties and possible litigation unless they register as telephone solicitors or adjust their business practices.

 The legislature set out to regulate and monitor telephone solicitors, but DATCP expanded the definition of “telephone solicitation” so that most business people (including REALTORS^®) who make non-exempt “telephone solicitation” calls must register with DATCP.  A “telephone solicitation” is defined by DATCP as an unsolicited telephone call that encourages the consumer to purchase property, goods or services, or a call that is part of a plan or scheme to encourage the consumer to buy property, goods or services. These “telephone solicitation” calls include not only traditional telemarketing activity but also the telephone calls a REALTOR^® makes to his or her clients or customers to remind them to order the septic test required by the offer contingency or to obtain an insurance binder for closing.

    NO AGENT CAN LEGALLY MAKE A “TELEPHONE SOLICITATION” CALL UNLESS THE BROKER IS REGISTERED WITH DATCP AS A TELEPHONE SOLICITOR OR THE PURPOSE OF THE CALL IS EXEMPT!

 What Should REALTORS^® Do About These Telephone Solicitation Rules?

 Step #1. All REALTORS^® Should Make Their Transactional Calls Exempt

Brokers should confer with their attorneys and take steps to make sure that their follow-up and closing preparation calls to their clients and customers are not classified as “telephone solicitations.” In other words, brokers should make their follow-up and closing preparation calls fit into one of the exceptions to the definition of “telephone solicitation.” These exceptions* include telephone calls made:

 In response to the consumer’s request for that call. Brokers may, after conferring with legal counsel, consider inserting language into all new and existing agency agreements and agency disclosures (starting immediately) to the effect that: “(Seller) (Buyer) requests but does not require Broker to telephone (seller) (buyer) regarding issues, goods and services related to the real estate transaction. This request will terminate at such time as Broker is no longer providing brokerage services to (seller) (buyer).”

 To a current client. A current client is a person who has a current agreement to receive, from the caller or the person on whose behalf the call is made, property, goods or services of the type promoted by the telephone call. Tinkering with the definition of clients and client services, may be considered, but only upon the advise of company legal counsel.

 Step #2. If Your Agents Do Cold Calling, Register with DATCP as a Telemarketer

 Step #3. If Registered as a Telemarketer, Observe the Do Not Call List Restrictions

Brokers that have registered with DATCP as telemarketers will receive the Do Not Call list. No agent may make a “telephone solicitation” call to any telephone number on the Do Not Call list, even if an agent is making a follow-up call to a party in a transaction, unless the call falls under one of the “telephone solicitation” exceptions. (See Step #1)

 *See Legal Update 02.11 (http://www.wra.org/Legal/Legal_Updates/2002/lu0211.asp) for further discussion of the DATCP telephone solicitation rules and a complete list of the exceptions to the definition of a “telephone solicitation.” The exceptions are also listed on the reverse side of this page.

All REALTORS^® Should Make Their Calls Exempt!

 Brokers should confer with their attorneys and take steps to make sure that their follow-up and closing preparation calls to their clients and customers are not classified as “telephone solicitations.” In other words, brokers should make their follow-up, closing preparation and other telephone calls fit into one of the exceptions to the definition of “telephone solicitation.” These exceptions include:

 A telephone call encouraging the call recipient to buy property, goods or services from a “nonprofit organization” unless sale proceeds are subject to Wisconsin sales tax or federal income tax. [REALTOR^® Perspective: REALTOR^® firms and companies are not nonprofit organizations.]

 A telephone call made by an individual acting on his or her own behalf, not as an employee or agent for any other person. This exemption does not apply to a caller who does any of the following: (a) sells or promotes the sale of property, goods or services for others, or (b) sells or promotes the sale of goods that the caller buys from another person who controls or limits the caller’s sales methods. [REALTOR^® Perspective: If taken literally, most REALTORS^® “sell or promote the sale of property, goods or services for other,” so reliance upon this exemption should be undertaken only with caution and only upon the advice of company legal counsel.]

       A telephone call made in response to the call recipient’s affirmative request for that call. [REALTOR^® Perspective: This may prove to be the best option for most brokers who may, after conferring with legal counsel, insert language in all agency agreements and agency disclosures (starting immediately) relating to real estate sales: “(Seller) (Buyer) requests but does not require Broker to telephone (seller) (buyer) regarding issues, goods and services related to the real estate transaction. This request will terminate at such time as Broker is no longer providing brokerage services to (seller) (buyer).”]

       A telephone call made to a current client. A current client is a person who has a current agreement to receive, from the caller or the person on whose behalf the call is made, property, goods or services of the type promoted by the telephone call. [REALTOR^® Perspective: Tinkering with the definition of clients and client services, as those concepts are employed under real estate license law is a possibility, but may prove difficult and confusing. It may be necessary to list goods, services and tasks (telephone calls) that are being embraced as part of client services.]

       A telephone call made to a number listed in the current local business telephone directory. [REALTOR^® Perspective: This may be a viable option for commercial brokers but obviously does not generally benefit residential brokers.]

       One telephone call to determine whether a former client mistakenly allowed a contractual relationship to lapse. [REALTOR^® Perspective: This type of call may be made by REALTORS^® under those limited circumstances.]

       A telephone call made to determine a former client’s level of satisfaction, unless the call is part of a plan or scheme to encourage the former client to purchase more property, goods or services. [REALTOR^® Perspective: This type of call may be made by REALTORS^® under those limited circumstances but requires caution—there is a risk of the call later being classified as a telephone solicitation if it is deemed to be part of a scheme or plan to sell.]

       A telephone call made to a party to an existing contract that is necessary to complete the contract. [REALTOR^® Perspective: This exemption may apply to calls a REALTOR^® makes to the seller or the buyer regarding a listing contract or buyer agency agreement, as long as care is taken to limit the conversation to tasks needed to fulfill the contract or agreement.]