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As currently written, the FCC rules for both interstate and intrastate calls
generally prohibit, among other things, telephone solicitations to people who
have registered their residential telephone numbers on a national do-not-call
registry (47 C.F.R. § 64.1200(c)(2) implementing the federal Telephone
Consumer Protection Act of 1991). According to the FCC, American consumers
strongly object to uninvited and unwanted telemarketing calls. In response to this
public pressure, the FCC adopted the do-not-call registry to give consumers the
opportunity to decide whether they want to receive telephone solicitations at
A “telephone solicitation” is a telephone call that acts as an advertisement. It is
broadly defined by the FCC as the initiation of any telephone call or message,
unless exempt, “for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any person”
(47 C.F.R. § 64.1200(f)(9)). Hence, under the new rules, REALTORS® making
telephone solicitations, such as those engaging in cold calling, must generally
refrain from calling phone numbers on the do-not-call registry.
Q 2. When do these laws take effect?
A The do-not-call rules were generally scheduled to go into effect on October 1,
2003. The state of the law, however, is currently unclear, because of constant,
late-breaking developments, including various lawsuits brought challenging the
legality of these rules on constitutional and other grounds. To be prudent,
REALTORS® should comply with the rules to the fullest extent possible.
II A. APPLICABILITY
Q 3. But I thought REALTORS® are exempt from the do-not-call
requirements – am I right?
A No. There are three do-not-call laws affecting California’s real estate
practitioners: (1) California law; (2) the Federal Trade Commission (FTC) rules;
and (3) the Federal Communications Commission (FCC) rules. Unlike the first
two laws, the sweeping FCC rules do generally apply to REALTORS® engaged
in telephone solicitations.
First, in October 2001, the California legislature enacted a law requiring the
establishment of a statewide do-not-call list. REALTORS®, however, are
generally exempt from this law under the C.A.R.-sponsored “small business”
exception. This small business exception applies to calls made within a 50-mile
radius by either individual businesspersons or small businesses with “no more
than five full or part-time employees or independent contractors” (Cal. Bus. &
Prof. Code § 17592(e)(5)). Thus, a real estate salesperson is exempt as long as
he or she does not personally employ more than five assistants, regardless of
how many people work at that real estate company. For REALTORS® who do
not fall within this small business exception, the state do-not-call requirements,
including other exemptions, are fully set forth at California Business and
Professions Code Sections 17590-95.
Second, in December 2002, the FTC ordered the implementation of a national
do-not-call registry. REALTORS® are also generally exempt from the FTC rules
primarily because the rules only apply to interstate telephone calls (i.e., calls
made across state lines) (16 C.F.R. § 310.2(cc)). These FTC rules for interstate
calls are discussed below.
Third, in July 2003, the FCC enacted new do-not-call requirements for both
interstate and intrastate telemarketing calls. There are certain exemptions to the
FCC rules as discussed below. These exemptions, however, are generally
inapplicable to REALTORS® who make telephone solicitations, including what is
commonly understood as cold calling.
Q 4. If, as a REALTOR®, I am exempt from California’s do- not- call
requirements, why would I have to comply with the federal do- not- call
A According to the FCC, the federal rules set a minimum standard “by operation
of general conflict preemption law,” and therefore “supersede all less restrictive
state do-not-call rules” (68 Fed. Reg. 44144 at 44155, para. 59 (2003)). Using
this analysis, the California do-not-call rules generally exempting REALTORS®
would arguably be less restrictive than the federal rules which do not have a
REALTOR® exemption, and thus, under the FCC’s rationale, California’s
REALTORS® would be required to comply with the more stringent federal rules.
Q 5. What are the exemptions to the FCC do- not- call rules?
A Certain types of calls are exempt from the FCC’s do-not-call requirements,
including calls that are made by or made based on:
• Written permission (see Question 6).
• Established business relationships (see Question 7).
• Personal relationships (see Question 8).
• Tax-exempt nonprofit organizations.
(See 47 C.F.R. §§ 64.1200(c)(2)(ii) and 64.1200(f)(9).) This legal memorandum
does not cover the treatment of tax-exempt nonprofit and political organizations
under the do-not-call laws.
Q 6. What is the written permission exception to the do-not-call
A The FCC’s do-not-call requirements are inapplicable if a telephone call is
placed to someone who has given prior express invitation or permission to call.
This permission must be evidenced by a signed, written agreement to be
contacted by this caller at a specified telephone number. (47 C.F.R.
Q 7. What is the established business relationship exception to the
A The FCC defines an “established business relationship” as “a prior or existing
relationship formed by a voluntary two-way communication between a person or
entity and a residential subscriber with or without an exchange of consideration,
on the basis of” one of the following:
• The consumer’s purchase or business transaction with the entity within the last
18 months; or
• The consumer’s inquiry or application regarding the entity’s products or services
within the last three months.
(47 C.F.R. § 64.1200(f)(3).)
An established business relationship with a particular company does not extend
to affiliated companies unless the consumer would reasonably expect them to be
included given the nature and type of goods or services offered by the affiliate
and the identity of the affiliate (47 C.F.R. § 64.1200(f)(3)(ii)). There is no
established business relationship if either party previously terminated the
relationship (47 C.F.R. § 64.1200(f)(3)). Furthermore, a caller must honor the
consumer’s request to be placed on the caller’s company-specific do-not-call list
(discussed below), even if the parties continue to do business together (47
C.F.R. § 64.1200(f)(3)(i)).
Q 8. What is the personal relationship exception to the do-not-call
A A “personal relationship” means any family member, friend, or acquaintance
of the telemarketer making the call (47 C.F.R. § 64.1200(f)(11)).
Q 9. What if my telephone solicitations don’t fall within any of these
A REALTORS® may be able to alter some of their current marketing practices
to fall within one of the do-not-call exemptions. Let’s say, for example, you send
out a mass mailer offering a free Comparative Market Analysis (CMA). Given the
do-not-call rules, you may want to consider asking homeowners to send you a
response card providing their telephone numbers and a signed written consent
for you to call them. If they respond accordingly, your subsequent calls to them
will fall under the written permission exemption with no expiration date.
Alternatively, if you don’t get a signed written consent, you may want to date
stamp any response cards you receive to ensure that you call within three
months to fall under the established business exemption for inquiries.
As another example, you may want to consider using your Open House registry
to inform those who sign in that, by providing you with their telephone numbers
and signatures, they are giving you permission to call them. There may be other
aspects of your real estate practice that may be changed to fall within one of the
If, however, your practice cannot be altered to fall within an exemption, you may
be required to comply with the do-not-call requirements. Although
cross-checking your call list with the do-not-call registry may be cumbersome and
time-consuming, your advertising efforts may ultimately be more effective if you
no longer call people who have chosen to go on the do-not-call registry. Whether
your call list gets shorter or not, the important thing is to make every call count.
Q 10. What about my unlicensed assistant who does telephone
prospecting for me?
A An unlicensed assistant who makes telephone solicitations on a REALTOR®’s
behalf is subject to the same do-not-call rules (47 C.F.R. § 64.1200(c)(2)).
Furthermore, under California Department of Real Estate guidelines, an
unlicensed assistant may canvass for general interest in using the services of a
real estate broker, but cannot attempt to induce a prospective client to use the
services of the broker for a specific property, transaction, or product. For further
details, please refer to C.A.R.’s legal memorandum, Unlicensed Assistants.
II B. CONSUMER INFORMATION
Q 11. How does a consumer get on the national do-not-call registry?
A Consumers can register online at www.donotcall.gov or by calling
1.888.382.1222 (TTY: 1.866.290.4236) from the phone number to be registered.
Consumers may register both their residential telephone numbers and cellular
phone numbers (47 C.F.R. § 64.1200(e)). There is no cost for registration.
Telemarketers generally have three months to remove newly registered
telephone numbers from their call lists. The do-not-call database will be
administered by the FTC.
Q 12. How long does a phone number stay on the do- not- call registry?
A A consumer’s phone number will remain on the do-not-call registry for five
years (unless the consumer decides to take it off the registry). A consumer may
re-register every five years. (47 C.F.R. § 64.1200(c)(2).)
II C. REQUIREMENTS
Q 13. If I make telephone solicitations, what do I have to do to comply with
the do- not- call requirements?
A No person or company shall initiate any telephone solicitation to residential
consumers whose telephone numbers are on the do-not-call registry (47 C.F.R.
§ 64.1200(c)(2)). Calls that are made based on or by written permission,
established business relationships, or personal relationships are excluded from
the definition of “telephone solicitation” (47 C.F.R. § 64.1200(f)(9)).
For covered calls, you must access the do-not-call database at
https://telemarketing.donotcall.gov. You must “scrub” your call list at least once
every three months. “Scrubbing” means cross-checking the do-not-call registry
with your own call list, and dropping from your call list the telephone numbers of
people who have registered. The database only provides the telephone numbers
of registrants, sorted by area codes.
On subsequent visits to the FTC’s website, you will be able to download either a
complete updated list of telephone numbers from the area codes you have
selected or a more limited list showing additions and deletions from when you
last downloaded. For more information, go to https://telemarketing.donotcall.gov/
Q 14. What is the cost of accessing the do-not-call registry?
A There is no charge for the first five area codes of data accessed by any
person. For more than five area codes, the annual fee charged to any person
accessing the data is $25 per area code, up to a maximum of $7,375 for the
entire registry. (16 C.F.R. § 310.8(c).) Payment for accessing the registry is
unnecessary for people initiating calls solely under the written permission or
established business relationship exceptions of the FTC rules (16 C.F.R.
A person accessing the registry may not participate in any arrangement to share
the cost of accessing the registry (16 C.F.R. § 310.8(c)). Separate divisions,
subsidiaries, or affiliates of an entity must pay a separate access fee if: (1) the
entity is separately incorporated or, for a non-corporate entity, is a similarly
distinct legal entity; and (2) the entity has or markets under a different name.
(68 Fed. Reg. 45134 at 45139 (2003).)
Q 15. What if I sign up, but a few months later I want to access more area
A When you access the do-not-call registry, you will be given a unique account
number allowing you to continue accessing the area codes you have selected for
a period of 12 months (e.g., if you subscribe on September 15, 2003, the annual
period will be from September 1, 2003 to August 31, 2004). During that annual
period, if you want to access more area codes than what you originally selected,
each additional area code (after the first five) will cost $25 during the first six
months of the annual period, and $15 during the second six months of the annual
period. Payment of the additional fee will give you access to the additional area
codes for the remainder of the annual period only. (16 C.F.R. § 310.8(d).)
Q 16. What will happen if I call someone on the do-not-call registry by
A No person or company will be held liable for violating the do-not-call
requirements if you can demonstrate all of the following:
• Error: You called someone on the do-not-call registry as a result of error.
• Written policy: You have a written procedure for complying with the do-not-call
• Recording: You have maintained and recorded a list of telephone numbers that
cannot be contacted.
• Accessing: You use a process to prevent telephone solicitations to any
telephone number on your do-not-call list, which employs a version of the
national do-not-call registry obtained from the administrator of the registry every
three months, and you maintain records documenting this process.
• Purchasing: You use a process to ensure that you do not use the do-not-call
database for any purpose other than compliance with state and federal laws.
You also do not share the cost of accessing the do-not-call database with other
• Training: You have trained your personnel to comply with the do-not-call
(47 C.F.R. § 64.1200(c)(2)(i).)
Q 17. What are the rules for telephone solicitations to consumers who are
not on the do- not- call registry?
A Under the FCC regulations adopted on July 25, 2003, the general
telemarketing rules are as follows:
• Do not call before the hour of 8 a.m. or after 9 p.m. (local time at the called
party’s location). (47 C.F.R. § 64.1200(c)(1).)
• Do not disconnect an unanswered call before at least 15 seconds or four rings.
(47 C.F.R. § 64.1200(a)(5).)
• When you call, you must give: (1) your name; (2) your company’s name; and
(3) your telephone number or address at which you may be contacted. (47
C.F.R. § 64.1200(d)(4).)
• You must maintain “company-specific” do-not-call procedures. (47 C.F.R.
§ 64.1200(d).) (See Question 18.)
• Do not block caller ID (effective January 29, 2004). (47 C.F.R. § 64.1601(e)(ii).)
• For caller ID, you must transmit your name and a telephone number for people to
use during regular business hours to make do-not-call requests (effective
January 29, 2004). (47 C.F.R. § 64.1601(e)(i).)
Although the first requirement regarding time-of-day does not technically apply to
callers with written permission or established business relationships, it is still
good practice not to call clients very early in the morning or very late at night.
The remaining requirements listed above are applicable as long as you engage
in telemarketing, even if you have written permission or an established business
relationship. “Telemarketing” is defined as “the initiation of 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” (47 C.F.R.
§ 64.1200(f)(7)). See Question 19 for additional requirements for interstate calls.
Q 18. What are company- specific do-not-call procedures?
A As mentioned above, no person or company shall initiate any call for
telemarketing purposes, as defined above, to a residential telephone subscriber
absent established procedures for maintaining a list of persons who ask not to be
called. These procedures must, at a minimum, include the following:
• Written Policy: You must have a written policy, available on demand, for
maintaining a company-specific do-not-call list.
• Identification: When you call someone who is not on the do-not-call registry, you
must provide the called party with: (1) your individual name; (2) your company’s
name; and (3) your telephone number or address at which you may be
contacted. The telephone number provided cannot be a 900 number or any
other number for which charges exceed local or long distance transmission
• Recording: For any residential telephone subscriber who requests not to be
called, that person’s name, if provided, and telephone number must be placed on
a company-specific do-not-call list at the time the request is made. You must
honor this do-not-call request within a reasonable time, not to exceed 30 days.
• Maintenance: You must maintain a record of the do-not-call requests, and honor
it for five years.
• Training: Your personnel engaged in any aspect of telemarketing must be
informed and trained in the existence and use of the do-not-call list.
• Affiliates: Unless someone requests otherwise, a consumer’s do-not-call request
applies to the particular business entity making the call, and not affiliated entities
unless the consumer reasonably would expect them to be included given the
identification of the caller and the product being advertised.
(47 C.F.R. § 64.1200(d).)
Based on the above language, it would be prudent in most situations for the
do-not-call list to be maintained by a real estate company as a whole, not just the
individual salesperson working for that company, even if the salesperson
engaging in telemarketing activities is an independent contractor.
Q 19. What about interstate calls?
A REALTORS® engaged in interstate telemarketing must not only comply with
the FCC rules outlined above, but also the FTC rules discussed below.
However, even if a REALTOR® makes interstate calls, he or she is likely to fall
under a limited exemption to the FTC rules for “[t]elephone calls in which the sale
of goods or services . . . is not completed, and payment or authorization of
payment is not required, until after a face-to-face [sales] presentation” by the
REALTOR® (16 C.F.R. § 310.6(b)(3)).
Under this limited face-to-face exemption, you are exempt from the bulk of the
FTC rules, but you are nevertheless prohibited from doing the following when
engaged in interstate telemarketing:
• Using threats, intimidation, or profane or obscene language (16 C.F.R. § 310.4(a)
• Calling to annoy, abuse, or harass (16 C.F.R. § 310.4(b)(1)(i)).
• Interfering with someone’s right to place his or her name on a do-not-call list (16
C.F.R. § 310.4(b)(1)(ii)).
• Blocking caller ID (effective January 29, 2004) (16 C.F.R. § 310.4(a)(7)).
• The remaining applicable FTC requirements are substantially similar to the FCC
rules outlined above (see 16 C.F.R. §§ 310.4(b) and (c)).
For purposes of the FTC rules, “telemarketing” is defined as “a plan, program, or
campaign which is conducted to induce the purchase of goods or services or a
charitable contribution, by use of one or more telephones and which involves
more than one interstate telephone call” (16 C.F.R. 310.2(cc)). For
REALTORS® who engage in interstate telemarketing, but do not conduct
face-to-face sales presentations, the FTC requirements are fully set forth at Title
16 of the Code of Federal Regulations Sections 310.1-310.9.
Q 20. What about automated telephone equipment, such as autodialers or
A An autodialer (or “automatic telephone dialing system") refers to equipment
that can generate and dial telephone numbers randomly or sequentially (47
C.F.R. § 64.1200(f)(1)). Autodialers are generally used for placing artificial
(computerized) or prerecorded messages. There are various laws governing the
use of autodialers and artificial or prerecorded messages, as fully set forth at
Title 47 of the United States Code Section 227 and Title 47 of the Code of
Federal Regulation Section 64.1200 (federal law), and at California Public
Utilities Code Sections 2871-2875.5 and California Civil Code Section 1770(a)
(22)(A) (state law).
For example, under California law, using autodialers to place calls is generally
prohibited before 9 a.m. and after 9 p.m. (Cal. Pub. Util. Code § 2872(c)).
Furthermore, under the FCC rules, telemarketers using predictive dialers must
ensure that they do not abandon more than 3% of all calls made over a 30-day
period. A call is considered “abandoned” if it is not connected to a live sales
representative within two seconds of the called person’s completed greeting. (47
C.F.R. § 64.1200(a)(6) (see also 16 C.F.R. § 310.4(b)(1)(iv).) This rule should
reduce the instances when a consumer answers the phone, only to hear dead air
or a hang-up.
II D. ENFORCEMENT
Q 21. What happens if someone violates these laws?
A Violations may be enforced by the issuance of citations or fines by the FTC,
the FCC, or state law enforcement agencies (see Question 22), and by court
order in a civil lawsuit brought by the consumer whose rights have been violated
(see Question 23).
Q 22. What does governmental enforcement entail?
A Failure for a REALTOR® to comply with the FCC rules could result in, among
other things, a fine up to $11,000 for each violation or each day of a continuing
violation, except that the amount assessed for any continuing violation shall not
exceed a total of $87,500 for any single act or failure to act (47 C.F.R. § 1.80(b)
(3)). For the FTC rules, the civil penalty is $11,000 for each violation (15 U.S.C.
45 (m)(1) and 16 C.F.R. § 1.98).
For do-not-call violations, a consumer may file a complaint with the FCC or
FTC . A complaint to the FCC must include the following:
• Consumer’s name, address, and daytime phone number.
• Telephone number involved in the complaint.
• As much specific information about the complaint as possible, including the
identity of the telemarketer or company that called.
A complaint to the FTC must provide the following information:
• Name or telephone number of the company that called.
• Date of call.
• Consumer’s registered telephone number.
• Optional: Consumer’s name and address.
The FCC and FTC may issue citations or fines, but they will not resolve individual
consumer problems. The FTC may enter complaints into Consumer Sentinel, an
online database accessible by civil and criminal law enforcement agencies,
including the California Attorney General.
Q 23. What is a consumer’s private right of action?
A Aside from governmental enforcement (discussed above), a consumer may
file a civil lawsuit in state court for a violation of the FCC or FTC rules. A
consumer may seek to recover actual monetary loss or $500 in damages for
each violation, whichever is greater, and an injunction prohibiting further
violations. The court may also award treble damages if the violator willfully or
knowingly violated these rules. (47 U.S.C. §§ 227(b)(3) and (c)(5).)
For certain violations, such as wrongfully using an autodialer or sending an
unsolicited fax (as discussed below), a consumer’s cause of action arises as
soon as the caller or sender violates the rules (47 U.S.C. § 227(b)(3)). For other
violations, including violations of telephone solicitation guidelines, a consumer’s
cause of action does not arise until he or she has received more than one
telephone call within any 12-month period by or on behalf of the same
company (47 U.S.C. § 227(c)(5)).
Q 24. What is this new law regarding faxing advertisements?
A Along with the do-not-call rules adopted on July 25, 2003, the FCC also
established new rules generally prohibiting the faxing of advertising materials
absent the fax recipient’s prior written permission. This written permission
requirement could significantly impact the way REALTORS® conduct business.
Fortunately, however, on August 18, 2003, the FCC granted a stay delaying
implementation of some of these new rules until January 1, 2005, as requested
by C.A.R. and various other organizations. C.A.R. has also filed a Petition for
Reconsideration requesting the FCC to, among other things, eliminate the written
permission requirement. Click here to review C.A.R.’s Petition for
Reconsideration currently pending before the FCC.
Q 25. Are REALTORS® exempt from the do-not-fax rules?
A No. There is no general exemption for real estate professionals.
Q 26. How, in a nutshell, do these do- not- fax rules affect me as a
A You are generally prohibited from faxing commercial advertisements, such as
flyers advertising the availability of your real estate services or property data
sheets offering a real property for sale. Your advertisements may be mailed,
downloaded from your website, or hand-delivered, but they generally cannot be
However, from now until December 31, 2004, you may fax advertisements if:
(1) the fax recipient has given you permission (verbal or written) to send the fax;
or (2) you and the fax recipient have an established business relationship. To be
prudent, consider an “established business relationship” as a purchase or
transaction within the last 18 months or an inquiry within the last three months
(see discussion below). Starting January 1, 2005, you will not be allowed to fax
advertising materials absent prior written permission from the fax recipient.
Q 27. What is the scope of these do-not-fax rules?
A No person or company may use “a telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a telephone facsimile
machine” (47 C.F.R. § 64.1200(a)(3)). However, the FCC’s definition of
“unsolicited advertisement” is much broader in scope than what people generally
consider as “junk faxes.” More specifically, the FCC defines an “unsolicited
advertisement” as “any material advertising the commercial availability or quality
of any property, goods, or services which is transmitted to any person without
that person’s prior express invitation or permission” (47 C.F.R. § 64.1200(f)(10)).
These rules have actually been in effect since 1992. They have, however, taken
on new meaning because of recent FCC changes in its determination of what
constitutes “prior express permission.”
Before the recent revisions, the FCC did not explicitly define “prior express
permission.” Furthermore, the FCC considered an “established business
relationship” (discussed below) as sufficient “prior express permission” for
businesses to send faxes to their own customers.
Thus, under the preexisting rules, a REALTOR® can send faxes to people who
have given verbal permission, and those with whom the REALTOR® has an
established business relationship. The FCC will generally continue with this
approach, including the recognition of an “established business relationship”
exception, until December 31, 2004.
However, effective January 1, 2005, all “prior express permissions” must be in
the form of a signed, written agreement to receive a fax at a specified fax number
(47 C.F.R. § 64.1200(a)(3)(i)). In other words, unless the rules change again,
starting on January 1, 2005, no one can fax advertising materials absent prior
written permission, even if the fax recipient has verbally requested that fax or if
the sender and recipient have an established business relationship. It apparently
makes no difference whether the fax recipient is an existing client, a real estate
agent, a prospective buyer, or anyone else. Furthermore, unlike the do-not-call
rules that pertain only to calls made to someone’s residence, the do-not-fax rules
apply to faxes sent to both residences and businesses.
Here’s one point of clarification. Before coming into effect, section 64.1200(a)(3)
(i) must be approved by the federal Office of Management and Budget (OMB)
under the Paperwork Reduction Act. (See 68 Fed. Reg. 56764 (2003) (stating
that the “OMB is continuing its review of the information collections associated
with the fax advertising rules.”)
Q 28. What is an “established business relationship” under current
A The FCC defines an “established business relationship” as:
a prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a residential
subscriber with or without an exchange of consideration, on the
basis of the subscriber’s purchase or transaction with the entity
within the eighteen (18) months immediately preceding the date of
the telephone call or on the basis of the subscriber’s inquiry or
application regarding products or services offered by the entity
within the three months immediately preceding the date of the call,
which relationship has not been previously terminated by either
party (47 C.F.R. § 64.1200(f)(3)).
The above definition for “established business relationship” is arguably
inapplicable to the do-not-fax rules (e.g., incongruous references to “residential
subscriber” and “telephone call”). However, to be prudent, REALTORS® should
nevertheless refrain from faxing under the “established business relationship”
exception unless the client has made a purchase or transaction with the
REALTOR® within the last 18 months or an inquiry or application with the last
three months. This established business relationship exception is scheduled to
be phased out on January 1, 2005.
Q 29. What exactly has been delayed until January 1, 2005?
A On August 18, 2003, the FCC released an order granting a stay to delay until
January 1, 2005 the effective date of: (1) the elimination of the “established
business relationship” exception; and (2) the requirement of written permission
before faxing “unsolicited advertisements.” The purpose of the stay is to give
businesses additional time to obtain the required written permission from their
customers, and to give the FCC an opportunity to consider any petitions for
reconsideration, such as that submitted by C.A.R. (Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, CG Docket
No. 02-278, FCC 03-208, Order on Reconsideration (rel. August 18, 2003).)
Q 30. Are there any other laws involving faxes?
A Yes. There are other rules involving faxes currently in effect. For instance,
all faxes, whether advertisements or not, must provide identification information
in the margin at the top or bottom of the first page of a transmission or on each
transmitted page. The required identification information for a fax is as follows:
• Date and time it is sent;
• Name of person or company sending the message; and
• Telephone number of the sending machine or of such person or company.
(47 C.F.R. § 68.318(d).) The FCC also prohibits the use of any technology to
dial any telephone number for the purpose of determining whether that line is a
fax or voice line (47 C.F.R. § 64.1200(a)(7)). There are also rules involving
facsimile broadcasters as discussed below.
Q 31. What is a fax broadcaster?
A A fax broadcaster is a person or entity that, for a fee, transmits fax messages
on behalf of others (47 C.F.R. § 64.1200(f)(4)).
Q 32. What are the do- not- fax rules pertaining to fax broadcasters?
A A fax broadcaster is liable for violations of the do-not-fax rules if it
demonstrates a high degree of involvement in, or actual notice of, the unlawful
activity and fails to take steps to prevent such fax transmissions (47 C.F.R.
§§ 64.1200(a)(3)(ii)). Furthermore, if a fax broadcaster demonstrates a high
degree of involvement in a sender’s fax messages, such as supplying the
numbers to which a message is sent, that broadcaster’s name (as registered with
the State Corporation Commission or comparable regulatory authority) must be
identified on the fax, along with the sender’s name. Fax machines manufactured
on or after December 20, 1992 must clearly mark such identifying information on
each transmitted page. (47 C.F.R. § 68.318(d).)
Q 33. What happens if someone violates these fax rules?
A As with the do-not-call rules discussed above, violations of the fax rules may
be enforced by the issuance of citations or fines by the FCC or state law
enforcement agencies, and by court order in a civil lawsuit brought by the
consumer whose rights have been violated. For government enforcement, a fine
can be as much as $11,000 for each violation or each day of a continuing
violation, except that the amount assessed for any continuing violation shall not
exceed $87,500 for any single act or failure to act (47 C.F.R. § 1.80(b)). For a
private right of action, a consumer may seek to recover actual damages or $500
for each violation, whichever is greater, and an injunction prohibiting further
violations. The court may also award treble damages if the violator willfully or
knowingly violated these rules. (47 U.S.C. §§ 227(b)(3) and (c)(5).)
Q 34. What is the law regarding e- mails?
A On September 24, 2003, California enacted sweeping antispam legislation
(SB 186) generally prohibiting unsolicited commercial e-mail advertisements.
Slated to go into effect on January 1, 2004, this new law generally prohibits the
transmission of unsolicited commercial e-mail advertisements in California.
Q 35. What falls within the scope of the new anti-spam law?
A Under the general rule, no person or company may initiate or advertise in an
“unsolicited commercial e-mail advertisement” from (or sent from) California, or to
(or sent to) a California e-mail address (Cal. Bus. & Prof. Code § 17529.2). A
“commercial e-mail advertisement” is broadly defined as “any electronic mail
message initiated for the purpose of advertising or promoting the lease, sale,
rental, gift offer, or other disposition of any property, goods, services, or
extension of credit” (Cal. Bus. & Prof. Code § 17529.1(c)). To “initiate” an
unsolicited commercial e-mail advertisement includes transmitting, causing to
transmit, and assisting in the transmission by providing e-mail addresses where
the advertisement may be sent, excluding routine transmissions of ads through
networks or service providers (Cal. Bus. & Prof. Code § 17529.1(i)).
Q 36. Are REALTORS® exempt from the antispam law?
A No. There is no general exemption for real estate professionals.
Q 37. What, then, are the exemptions from the antispam law?
A A commercial e-mail advertisement is exempt (i.e., not “unsolicited”) if: (1) the
recipient has provided direct consent to receive advertisements from the
advertiser; or (2) the recipient has a preexisting or current business relationship
with the advertiser. (Cal. Bus. & Prof. Code § 17529.1(o).)
Q 38. What is the “direct consent” exception to the antispam law?
A “Direct consent means that the recipient has expressly consented to receive
e-mail advertisements from the advertiser, either in response to a clear and
conspicuous request for the consent or at the recipient’s own initiative” (Cal.
Bus. & Prof. Code § 17529.1(d)). Although this definition does not specifically
require the consent to be in writing, it is advisable for a REALTOR® to obtain
written consent as readily available proof if needed.
Q 39. What is the “pre-existing or current business relationship”
exception to the antispam law?
A A “pre-existing or current business relationship” means “that the recipient has
made an inquiry and has provided his or her e-mail address, or has made an
application, purchase, or transaction, with or without consideration, regarding
products or services offered by the advertiser” (Cal. Bus. & Prof. Code
§ 17529.1(l)). Commercial e-mail advertisements sent under the business
relationship exception must provide an “unsubscribe” feature as further
Q 40. What is the “unsubscribe” requirement for commercial
advertisements e-mailed under the business relationship exception?
A A commercial e-mail advertisement sent under the business relationship
exception must provide the recipient with the ability to “opt-out” from receiving
further ads by calling a toll-free telephone number or by sending an
“unsubscribe” e-mail to the advertiser offering the products or services in the
commercial e-mail advertisement. The “opt-out” requirement does not apply to
commercial e-mail advertisements sent by the service provider of a recipient’s
free e-mail service. (Cal. Bus. & Prof. Code § 17529.1(l).)
Q 41. What are the other provisions of this anti-spam law?
A The anti-spam law prohibits the following conduct involving unsolicited
commercial e-mail advertisements from (or sent from) California or to (or sent to)
a California e-mail address:
• Collecting e-mail addresses posted on the Internet for purposes of using them to
initiate or advertise in an unsolicited commercial e-mail advertisement. (Cal.
Bus. & Prof. Code § 17529.4(a).)
• Using an e-mail address obtained from automated means (based on a
combination of names, letters, or numbers) to initiate or advertise in an
unsolicited commercial e-mail advertisement. (Cal. Bus. & Prof. Code
• Using scripts or other automated means to register for multiple e-mail accounts
to initiate or advertise in an unsolicited commercial e-mail advertisement. (Cal.
Bus. & Prof. Code § 17529.4(c).)
The anti-spam rules also prohibit the following conduct involving commercial
e-mail advertisements that are sent from California or sent to California e-mail
• Sending a commercial e-mail advertisement that contains or is accompanied by a
third party’s domain name without that third party’s permission (Cal. Bus. & Prof.
Code § 17529.5(a)). A “domain name” is “any alphanumeric designation that is
registered with or assigned by any domain name registrar as part of an electronic
address on the Internet.” (Cal. Bus. & Prof. Code § 17529.1(e).)
• Sending a commercial e-mail advertisement that contains or is accompanied by
falsified, misrepresented, obscured, or forged header information. (Cal. Bus. &
Prof. Code § 17529.5(b).)
• Sending a commercial e-mail advertisement that has a subject line that a person
knows would be likely to mislead a recipient, acting reasonably under the
circumstances, about a material fact regarding the contents or subject matter of
the message. (Cal. Bus. & Prof. Code § 17529.5(c).)
Other provisions involving e-mail service providers are fully set forth at California
Business and Professions Code Section 17538.45.
Q 42. What is the penalty for violating the anti-spam law?
A A recipient of an unsolicited commercial e-mail advertisement transmitted in
violation of these rules, the e-mail service provider, or the Attorney General may
sue to recover all of the following:
• Actual damages;
• Liquidated damages of $1,000 for each advertisement transmitted, up to a total
of $1 million per incident;
• Attorney’s fees and costs; and
• Any other remedies authorized by law.
If, however, a violator established and implemented, with due care, practices and
procedures reasonably designed to effectively prevent unsolicited commercial
e-mail advertisements in violation of the antispam law, the court shall reduce the
liquidated damages to a maximum of $100 for each unsolicited commercial
e-mail advertisement, up to a maximum of $100,000 per incident. (Cal. Bus. &
Prof. Code § 17529.8.)
Q 43. Are there any current rules concerning e-mails?
A Yes, but they are scheduled to be repealed effective January 1, 2004.
However, under the current law effective until December 31, 2003, no person or
company shall e-mail or cause to be e-mailed any unsolicited advertising material
for the sale, lease, gift offer, or other disposition of any real estate, goods, or
services, or extension of credit, unless that person or company does the
• Insert “ADV:” as the first four characters of the subject line of the e-mail
• Establish a toll-free telephone number or valid sender-operated return e-mail
address for recipients to notify the sender not to send any further unsolicited
• Inform recipients that they can use the toll-free number or return e-mail address
to notify the sender not to send any further unsolicited e-mails. This statement
must be the first text in the body of the message and it must be the same size as
the majority of the text of the message.
• Honor any notification by a recipient not to send any further unsolicited e-mails.
(Cal. Bus. & Prof. Code § 17538.4. )
These rules apply only to persons or companies conducting business in
California who use service providers or equipment located in California to send
unsolicited e-mail documents to California residents (Cal. Bus. & Prof. Code
§ 17538.4(a) and (d)). These rules do not apply if the sender and recipient have
an existing business or personal relationship or if the recipient requested or
expressly consented to the e-mail (Cal. Bus. & Prof. Code § 17538.4(e)).
Q 44. What about text messaging?
A Under California law, no person or company shall transmit or cause to be
transmitted a text message advertisement to a cellular telephone or pager (Cal.
Bus. & Prof. Code § 17538.41(a)). This rule applies to persons or companies
conducting business in California transmitting to a telephone number assigned to
a California resident (Cal. Bus. & Prof. Code § 17538.41(a) and (b)). If there is
an existing relationship, then this rule does not apply to the business transmitting
the text message, but only if the subscriber is offered an option not to receive text
messages from that business (Cal. Bus. & Prof. Code § 17538.41(c)). This rule
does not apply to affiliates of a business with an existing relationship with the
subscriber, but only if the subscriber has given consent to receive text messages
from affiliates (Cal. Bus. & Prof. Code § 17538.41(d)).
V. ADDITIONAL INFORMATION
Q 45. Where can I find the various laws?
A Federal law is found at 47 U.S.C § 227; 15 U.S.C. §§ 6101-6108; 16 C.F.R.
§§ 310.1-310.9; 47 C.F.R. § 64.1200; and 47 C.F.R. § 68.318. California law can
be found at California Business and Professions Code §§ 17511-17511.13,
17529-17529.9, 17538.4, 17538.41, and 17590-95; California Public Utilities
Code §§ 2871-2875.5; and California Civil Code § 1770(a)(22).
Q 46. Where can I get more information?
A For more information about the FCC’s do-not-call rules, go to its website at
www.fcc.gov/cgb/donotcall or call 1.888.CALL.FCC (1.888.225.5322) (TTY:
1.888.TELL.FCC). For the FTC rules, go to its website at www.ftc.gov/donotcall
or call 1.877.FTC.HELP (1.877.382.4357) (TTY: 1.866.653.4261). For California
laws, including the new antispam legislation, go to www.leginfo.ca.gov.
For a complete listing of products and services, including all legal memoranda,
available from C.A.R. visit C.A.R. Online. Readers who require specific advice
should review their facts with an attorney. C.A.R. members may speak with an
attorney, free of charge, by contacting C.A.R.’s Member Legal Hotline at
213.739.8282, Monday through Friday, from 9:00 A.M. until 6:00 P.M.,
or through our website at C.A.R. Legal Hotline.
C.A.R. members who are broker-owners, office managers, or
Designated REALTORS® can receive priority access to the Member
Legal Hotline by calling 213.739.8350 or through our website at
C.A.R. Legal Hotline.
General correspondence can be addressed
to email@example.com or:
California Association of REALTORS®
Member Legal Services
525 South Virgil Avenue
Los Angeles, California 90020