Division Newsletter Article:
The issue of Division of Real Estate Licensees cold-calling to find potential clients was first brought to my attention earlier this year when a Utah legislator informed me that he had just received a telephone call from a Utah real estate agent asking if he was interested in selling his home. There are two potential problems with this telephone call. First, the agent did not identify herself as a licensee. Second, this Legislator was on the National Do Not Call Registry, so he should not have received this telephone call. I notified the Utah Association of Realtors® of the concern, and they posted important information to their members on their Facebook page about the National Do Not Call Registry. I didn’t hear much more about this issue until the Division received the following email on April 11, 2019: It is time that the Realtor Board reminds member realtors that there is a Federal DoNot-Call List and that by making unsolicited calls offering their services, violates federal regulations and subjects them to fines. I have received several of these unsolicited calls from several different realtors. Until now, I have been informing them of the Federal Do Not Call List and the ramifications of violation. I will not do that anymore. From here out, I will take legal action if called. Your assistance in educating realtors with regard to the laws and regulations regarding the Federal Do Not Call List would be appreciated, and may save the realtors a lot of money. Utah Law The first thing for licensees to understand is that unless exempt, engaging in telephone solicitation in the State of Utah requires registration with the Division of Consumer Protection. According to the Telephone Fraud Prevention Act, 13-26-4, those exempt from registration include: (Continued on page 2)“a broker, agent, dealer, or sales professional licensed under the licensure laws of this state, when soliciting sales within the scope of his license.” It is important to understand that the telephone solicitation must be made within the scope of the license. If you are calling to be personally involved as a buyer or seller, the Division of Consumer Protection could view this as outside the scope of your license. In this case, you would need to be registered with the Division of Consumer Protection. In addition, Real Estate Administrative Rule R162-2f401a (5) – Affirmative Duties Required of All Licensed Individuals states: when making an offer or solicitation to buy, sell, lease or rent real property as a principal, either directly or indirectly, or as an agent for a client, a licensee shall disclose in the initial contact with the other party the fact that the licensee holds a license with the division, whether the license status is active or inactive…All licensed real estate agents and brokers must disclose in their initial contact that they are licensed. The licensee who called a legislator did not disclose she was a licensed real estate agent until after the legislator asked. Only licensed real estate agents are allowed to make cold calls soliciting for business: R162-2f-401g. Use of Personal Assistants In order to employ an unlicensed individual to provide assistance in connection with real estate transactions, an individual licensee shall: (2) supervise the assistant to ensure that the duties of an unlicensed assistant are limited to those that do not require a real estate license, including the following: (a) performing clerical duties, including making appointments for prospects to meet with real estate licensees, but only if the contact is initiated by the prospect and not by the unlicensed assistant; (b) at an open house, distributing preprinted literature written by a licensee, where a licensee is present and the unlicensed person provides no additional information concerning the property or financing, and does not become involved in negotiating, offering, selling or completing contracts; (c) acting only as a courier service in delivering documents, picking up keys, or similar services, so long as the courier does not engage in any discussion or completion of forms or documents; (d) placing brokerage signs on listed properties; (e) having keys made for listed properties; and (f) securing public records from a county recorder's office, zoning office, sewer district, water district, or similar entity; 4) prohibit the assistant from engaging in telephone solicitation or other activity calculated to result in securing prospects for real estate transactions, except as provided in this Subsection (2)(a). Federal Law Although licensees are exempt from registration with the Division of Consumer Protection, they are still required to follow laws pertaining to the Federal Do Not Call Registry, which means that you cannot call a telephone number on the registry. If cold-calling potential clients, the law requires you to check the Do Not Call Registry once every 31 days. There are two exceptions to this rule. First, you may call someone that you have an existing business relationship with. According to the FTC, the business relationship exception is as follows: (Continued on page 3) N A T I O N A L D O N O T C A L L R E G I S T R Y ( C O N T . ) A company with which a consumer has an established business relationship may call for up to 18 months after the consumer’s last purchase or last delivery, or last payment, unless the consumer asks the company not to call again. In that case, the company must honor the request not to call. The second exception applies to family members, friends, or acquaintances. If you are calling a family member, friend, or acquaintance, you are not required to check the Do Not Call Registry, but if one of them requests for you to not call them again, you must honor that request. Please be mindful when soliciting potential clients or asking for referrals. If you are going to cold-call potential buyers or sellers, expired listings, or call past clients, please be sure to adhere to the Federal Do Not Call Registry laws. A violation of the Do Not Call Registry can result in fines of up to $41,484 per telephone call. I recommend reading this Q&A section for solicitors put out by the FTC: https://www.ftc.gov/ tips-advice/business-center/ guidance/qa-telemarketerssellers-about-dnc-provisionstsr If you are a prelicense instructor or CE Instructor, please educate your students on the importance of following Federal Law.
Here is a website to check and scrub numbers: https://realphonevalidation.com/resources/do-not-call-list-scrubbing/