Do-Not-Call and Texting Rules for Illinois Agents

Two sets of federal rules decide whether an agent may call or text a lead. The Federal Trade Commission's Telemarketing Sales Rule bars an outbound sales call to a number on the National Do Not Call Registry unless the seller holds the person's signed written agreement or has an established business relationship with that person. The Federal Communications Commission's rules add consent requirements for autodialed or prerecorded calls and for texts sent to wireless numbers.

If you are weighing offices, read how to choose your first brokerage next to this guide, because lead calling is one of the daily habits a new agent has to settle before the first week is over. Gambino Realtors has been in business since 1923 and is based in Rockford. This article walks through what the rule text says, in plain words, and it says where the rule text is silent. It is not legal advice. Your broker, a compliance professional or an attorney confirms how any of this applies to a particular lead source.

Which Rules Reach an Agent Who Calls or Texts a Lead

Start with the FTC rule, because it has the clearest vocabulary. Part 310 of Title 16 of the Code of Federal Regulations implements the Telemarketing and Consumer Fraud and Abuse Prevention Act. It defines telemarketing as a plan, program or campaign to induce the purchase of goods or services by one or more telephones, and it requires more than one interstate telephone call. A seller is the person who provides, offers or arranges goods or services in exchange for consideration. A telemarketer is the person who, in connection with telemarketing, starts or receives the calls.

Here is the gap you should know about before reading further. The pages read for this guide do not say whether the Telemarketing Sales Rule treats real estate brokerage services as goods or services. They neither include nor exclude them by name. So this article does not claim the rule covers every call an agent makes, and it does not claim it covers none. It reports what the rule requires of anyone it does cover, and it leaves the coverage question to your broker or an attorney.

The FCC rule is written in a different vocabulary. The definition says "call or message," and it names property and rental in so many words. Paragraph (e) of the same section applies the do-not-call and internal-list rules to telemarketing calls or text messages to wireless numbers.

A third source sits behind both. The Telephone Consumer Protection Act, in Section 227 of Title 47 of the United States Code, is the statute the FCC rule carries out. It also gives people the right to sue, which the texting section below covers.

Two exemptions in the FTC rule are worth naming. The rule exempts a call that a customer starts on his or her own, when the call is not the result of any solicitation by the seller, except for any upselling inside that call. It also exempts calls between a telemarketer and a business, when the call is meant to induce a purchase by the business, with some listed exceptions. Read plainly, a buyer who phones an office unprompted is in a different position from a lead who filled out a form and is now being phoned back, because in the second case the agent is the one starting the call.

One more practical point on who is responsible. Under the FCC rule, when the records of do-not-call requests are kept by someone other than the entity on whose behalf the call is made, the entity on whose behalf the call is made is liable for failures to honor the request. The rule text does not say how that sorts out between a brokerage and the agents sponsored by it.

The Registry, Written Permission and Two Definitions of a Relationship

The National Do Not Call Registry is a list of landline and wireless numbers that legitimate telemarketers agree not to call. According to the FCC's consumer guide, registration is free at donotcall.gov or by phone at 1-888-382-1222. The FCC guide adds that its rules for autodialed calls and texts apply even when the number is not on the registry.

The FTC rule makes it a violation to start an outbound call to a person whose number is on the registry. It makes the same call a violation if the person has already said he or she does not want calls from the seller. Two exceptions exist. The first is that the seller can show the person's express agreement, in writing, to receive calls from a specific party. That agreement must name the party, include the telephone number where calls may be placed, and carry the person's signature. The second is that the seller has an established business relationship with the person and the person has not said no.

The FCC rule reaches the same place by a different road. A telephone solicitation under that rule does not include a call or message to someone who gave prior express invitation or permission. It also leaves out someone with whom the caller has an established business relationship. And the registry rule has its own exception for a caller who has a signed, written agreement stating that the consumer agrees to be contacted by this seller, with the number to be called. The FCC rule also carves out a telemarketer who has a personal relationship with the call recipient, which the rule defines as a family member, friend or acquaintance.

Now look at what "established business relationship" means, because the two agencies do not use the same clock. A side-by-side list makes the difference plain.

• FTC rule, purchase side: a purchase, rental or lease of the seller's goods or services, or a financial transaction with the seller, within the 540 days before the call.
• FTC rule, inquiry side: an inquiry or application about a good or service the seller offers, within the 90 days before the call.
• FCC rule, purchase side: a purchase or transaction within the 18 months before the call.
• FCC rule, inquiry side: an inquiry or application about products or services the entity offers, within the three months before the call.
• FCC rule, form: a relationship formed by a voluntary two-way communication, with or without an exchange of consideration, that neither party has terminated.

The rules are not written to agree down to the day. Ninety days and three months are close, and 540 days and 18 months are close, but a calendar can put a call on the wrong side of one clock and the right side of the other. Read the text of each rule for the call you plan to make.

Take a concrete case. A person fills in a form on a website asking about a house, and the agent calls back on day 80. That call falls inside the 90-day inquiry window in the FTC rule and inside the three-month inquiry window in the FCC rule. On day 100 the call falls outside both. The rule texts give a number of days or months and no more. They do not say what counts as an inquiry about a particular property, whether a form entry on a third-party site qualifies as an inquiry to this seller, or whether the number on the form was typed by the person who owns it. Those are questions for the person responsible for the compliance program.

An established business relationship can also end early. Under the FCC rule, a seller-specific do-not-call request terminates the relationship even if the person continues to do business with that seller. The relationship does not automatically extend to affiliated businesses either, unless the person would reasonably expect them to be included given the nature of the goods or services and the identity of the affiliate.

Calling Rules: Hours, Lists, Training and Records

The calling rules are specific enough to follow like a checklist, and the safe harbor in each rule shows what a defensible program looks like. Under the FTC rule, a seller or telemarketer is not liable for a violation of the do-not-call provisions if it can demonstrate that, as part of its routine business practice, it did all of the following. It established and implemented written procedures. It trained its personnel and anyone helping with compliance. It maintained and recorded a list of numbers it may not contact. It used a process to prevent calls to listed numbers, employing a version of the registry obtained no more than 31 days before the call, and kept records documenting the process. It monitored and enforced compliance. And any later call that broke the rule was the result of error. The FCC rule repeats the same core elements, including the 31-day limit.

Notice the 31 days. The safe harbor names a registry version obtained no more than 31 days before any call, and it asks for records documenting the process. A list downloaded once and reused for a year is not what that language describes.

Calling hours are the same in both rules. Without the person's prior consent, an outbound call to a residence may be made only between 8:00 a.m. and 9:00 p.m., local time at the called person's location. The words "at the called person's location" are in both texts. The rule measures the hour at the lead's location, so the clock on the agent's phone does not settle it.

On the call itself, the FTC rule requires an outbound sales call to disclose, promptly, who the seller is, that the purpose of the call is to sell goods or services, and the nature of what is being sold. The FCC rule requires the telemarketer to give the called party the name of the individual caller, the name of the entity on whose behalf the call is made, and a telephone number or address where that entity can be reached. The FTC rule also bars failing to send the caller's number, and the caller's name when the carrier makes it available, to caller ID. It allows the name and customer service number of the seller to be substituted, if that number is answered during regular business hours.

The do-not-call request itself carries rules. The FCC rule requires a written policy, available on demand, and training for anyone involved in telemarketing. When a person asks not to be called, the caller must record the request and put the name, if given, and the number on the list at the time of the request. The request must be honored within a reasonable time that may not exceed 10 business days. The record must be kept for 5 years. A request applies to the entity making the call, and it does not apply to affiliates unless the consumer would reasonably expect them to be included.

The FTC rule is blunt about how not to treat the request. Interfering with a person's right to be placed on a do-not-call list is a violation. The rule lists hanging up on the person, failing to honor the request, requiring the person to listen to a sales pitch before accepting the request, charging a fee, and requiring the person to call a different number. It also bars causing a phone to ring repeatedly or continuously with intent to annoy, abuse or harass.

Two more calling rules matter for anyone using software to place calls. A prerecorded-message sales call requires the recipient's express written agreement under the FTC rule, with a clear disclosure of the purpose, no requirement that the agreement be a condition of buying anything, and a specific seller named. An answered call that is not connected to a sales representative within two seconds of the person's completed greeting is an abandoned call. The safe harbor limits abandoned calls to 3 percent of answered calls over a campaign, or over each 30-day period. The registry lists themselves may be used only to comply with the rules or to prevent calls to the listed numbers. They may not be sold, rented, leased or used for other purposes.

If someone other than the agent will place the calls, the state license question and the federal calling question are separate. Our guide to Illinois Unlicensed Assistants: What the Rules Allow covers the state license rules, and the federal rules above ask who the seller is and who made the call.

Texting Rules: Consent, Stop Words and Who Can Sue

Texting has its own trap. The FCC rule applies to a call or message that includes an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to a cellular number. That call needs the prior express written consent of the called party. The FCC consumer guide states the same thing for texts. It says commercial texts require written consent and that FCC rules ban autodialed texts to a mobile phone without consent.

The rule defines prior express written consent precisely. It is an agreement in writing, bearing the signature of the person called, that clearly authorizes the seller to deliver advertisements or telemarketing messages using an autodialer or an artificial or prerecorded voice. It must include the telephone number. It must also include a clear and conspicuous disclosure that signing authorizes those calls and that the person does not have to sign as a condition of buying property, goods or services. An electronic signature is acceptable if it is valid under federal law or state contract law.

The rule text does not address a specific web form. What it does is write the definition in terms of what the person was told and what the person signed. The disclosure must be clear and conspicuous, and the agreement cannot be required as a condition of buying anything.

Revocation is where most texting trouble starts. The rule then names the words that count automatically. A reply of stop, quit, end, revoke, opt out, cancel or unsubscribe to a text is a reasonable means of revocation in every case. If the reply uses other words, the caller must still treat it as a valid revocation request if a reasonable person would understand those words to convey it. Once consent is revoked by one of those methods, the caller may not send additional robocalls and robotexts.

The rule goes a step further for messages that arrive by other routes.

The rule allows one thing that surprises people. A single text confirming a revocation request does not violate the rule, as long as it only confirms the request, includes no marketing or promotional information, and is the only additional message sent after the revocation arrives. A confirmation that says "you are unsubscribed" is allowed. A confirmation that says "you are unsubscribed, but here is a new listing" is not what the rule describes.

What does it cost to get this wrong? The statute supplies the answer for private lawsuits. Under Section 227(b)(3), a person may sue in state court for an injunction, for actual monetary loss, or for 500 dollars in damages for each violation, whichever is greater. If the court finds the violation was willful or knowing, it may raise the award to as much as three times that amount. Section 227(c)(5) covers the do-not-call rules in a similar way. It lets a person who received more than one call within a 12-month period from or on behalf of the same entity sue for actual loss or up to 500 dollars per violation, again with up to three times for a willful or knowing violation.

The same section of the statute offers a defense. In a do-not-call lawsuit it is an affirmative defense that the defendant established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations.

What the sources do not give is a table of penalties for FTC or FCC enforcement. Those figures were not part of the pages read for this guide, so none appear here. This guide did not read any Illinois statewide calling or texting rule. The FCC guide points readers to their state's public service commission or consumer protection office for the state lists, and it does not describe Illinois rules. Check Illinois separately before building a calling or texting routine.

The Bottom Line

Calling and texting leads is regulated by two federal rule sets that overlap but do not match. The FTC rule and the FCC rule both bar calls to registered numbers without a signed written agreement or an established business relationship, but the relationship clocks differ, at 90 days against three months for an inquiry and 540 days against 18 months for a purchase. Both set the same calling hours, 8:00 a.m. to 9:00 p.m. at the called person's location. Both expect written procedures, training, a recent registry list and a record of every request to stop.

Texting is the sharper edge. An autodialed marketing text to a cell number needs prior express written consent that says what the person agreed to and says signing was optional. A reply of stop, and a short list of similar words, ends the texting at once. The statute lets the recipient sue for 500 dollars a violation, and up to three times that for a knowing one.

What no source here settles is whether a brokerage's listing and representation services count as goods or services under the FTC rule, and how a form on a third-party site fits the consent definitions. Put those two questions to your sponsoring broker before you dial or text anyone. Gambino brings leads to agents, so ask any office you are considering how its leads were collected and what consent it holds for them. Our guide to how to choose your first brokerage lists the questions to put to an office, and our guide to Illinois Real Estate Advertising Rules for Brokers covers the Illinois advertising rules. The full list of articles is in the Illinois Real Estate Guide: Every Gambino Realtors Article.

Calling and texting questions tend to come in a predictable order, from who can be called to what happens after a complaint. Here are the ones that come up most often.

Frequently Asked Questions