Commercial Broker Quarterly: Summer 2003 - GWCAR, Greater Washington Commercial Association of REALTORS(R)

CBQ >> Summer 2003 Issue

Fax Ban Delayed Until '05; Registry Rules Expanding

On August 19, acting on petitions filed by the National Association of REALTORS^® and other concerned organizations, the Federal Communications Commission (FCC) issued a stay of new regulations governing fax advertisements until January 1, 2005.

The FCC granted the stay request after receiving hundreds of comments and requests for interpretation from associations and businesses over the past several weeks regarding the rule.

The fax ban is a result of a reinterpretation of the Telephone Consumer Protection Act (TCPA) of 1991, which prohibited unsolicited faxes and requires a person or entity to obtain the prior express invitation or permission from the recipient before transmitting unsolicited fax advertisements. The 1992 rules promulgated by the FCC determined that an established business relationship, such as the one between a trade association and its members, constitutes express permission to receive an unsolicited fax.

In the same rule promulgating the Do-Not-Call provisions, the FCC reversed that interpretation. The FCC concluded that the existing business relationship no longer would be sufficient to show that an individual or business has given their express permission to receive unsolicited fax advertisements. The FCC ruled that this express invitation or permission must be in writing and include the recipient's signature.

It is not clear yet to what extent the definition of "unsolicited advertising" applies to communications from an association to its members, other than those advertising product sales and promotions. NAR is pursuing the matter and clarification should be forthcoming.

NAR and others argued that the fax regulations as written would significantly impede basic communication between associations and their members. The new rules were due to go into effect August 25, but will now be given more deliberate consideration to determine congressional intent.

Do-Not-Call Registry
National Do-Not-Call Registry On July 3, NAR sent out a memo to all association executives and government affairs directors to announce that "the FCC announced final amendments to their Telemarketing Rules that would among other things extend the National Do-Not-Call provisions of the Federal Trade Commission (FTC) rule to intrastate calls."

The memo explained, "This is a significant change to the rules regulating telemarketing sales and a largely unexpected move by the FCC. As a result, all real estate professionals now must comply with the requirements of the National Do-Not-Call registry, regardless of state law exemptions. Earlier NAR communications and policy briefs maintained that unless real estate licensees were calling across state lines, compliance with the federal law was not necessary and instructed members to adhere to state law requirements. This latest action by the FCC reverses this interpretation."

Since July 10, NAR has engaged in a multi-faceted campaign to address this move by the FCC that has pre-empted a state's ability to enact and enforce their own Do-Not-Call statutes.

These activities have already begun and NAR posts weekly updates on their progress and additional efforts."

For the most recent up-to-date information on the Do-Not-Call Registry and its amendments, look for information on NAR's Web site at www.realtor.org/libweb.nsf/pages/fg707 or contact Jeanne Delgado at jdelgado@realtors.org.