REALTORS^® and brokerages should ensure they have policies and procedures in place to avoid potential sanctions related to breaches of the National Do Not Call List (DNCL).

CREA’s recent presentation on the National DNCL emphasized the importance of understanding how this list intersects with REALTOR^® and brokerage practice.

The National DNCL gives consumers the ability to choose whether to receive unsolicited telecommunications from telemarketers. This impacts real estate professionals who initiate unsolicited telecommunications (cold calls) with customers for a commercial purpose.

The Canadian Radio-television and Telecommunications Commission’s (CRTC) Unsolicited Telecommunications Rules are based on consent, meaning brokerages and REALTORS^® are not allowed to call customers who have not consented to those calls or who have registered their numbers on the National DNCL.

If members decide to engage in telemarking services, the CRTC requires you to register your business information and buy a subscription to the National DNCL.

It is preferable for brokerages to subscribe to the National DNCL rather than individual REALTORS^®. REALTORS^® act on behalf of brokerages and, as a result, brokerages will be held liable for the breaches of their employees/agents. This also has administrative and financial advantages, as it ensures that a brokerage’s subscription can be used by all its associates.

Each brokerage is also responsible for maintaining its own internal DNCL. Brokerages must make all reasonable efforts to ensure that they add a customer’s name and number to their internal DNCL within 14 days of the customer’s do not call request.

Exceptions

Although the rules are based around consent, there are a couple of exceptions that apply to the real estate industry:

1. Business telephone numbers

   Business-to-business telemarketing is not covered by the National DNCL policies, as business telephone lines or private telephone lines that are also used for business purposes are not to be registered on the list.

2. Existing business relationship

         An existing business relationship is said to exist where:

• A real estate professional and a customer have done business together (i.e., the REALTOR^® has acted as buying, selling or rental agent) or were in another type of contractual relationship within the 18-month period immediately preceding the telecommunication
• The customer/recipient has made an inquiry about the services of a REALTOR^® within the six months period immediately preceding the telecommunication.  

Due diligence defence

If a brokerage accidentally calls a number on the National DNCL, the CRTC’s Unsolicited Telecommunications Rules mandate that the brokerage should meet all the underlisted requirements to avoid liability:

1. The telecommunication resulted from an error.
2. The brokerage’s routine business practices include the following:

• The brokerage has established and implemented adequate written policies and procedures to comply with the Unsolicited Telecommunications Rules and to honour consumers' requests that they not be contacted by way of a telemarketing telecommunication.
• The brokerage provides ongoing training to staff/employees.
• The brokerage is using a National DNCL that is not more than 31 days old.
• The brokerage is using an Internal DNCL that is not more than 14 days old.
• The brokerage has a documented process to prevent telemarking to a number that has been on the National DNCL for more than 31 days or its internal DNCL for more than 14 days.
• The brokerage monitors and enforces compliance with the Unsolicited Telecommunications Rules and its own internal written policies and procedures.
• The brokerage requires that third-party service providers agree to comply with the Rules.

CREA has provided detailed advice on creating an office policy for compliance with the National DNCL.

Takeaways for the real estate industry

1. Record keeping

When relying on existing business relationship(s), always remember that this exception is time limited and represents an opportunity to obtain express consent for future telemarketing calls after the expiration of the time limit. It is also vitally important to keep track of the varying expiry dates of these time limits.

Existing business relationships, as well as records of the policies and procedures that establish a due diligence defence, should also be well documented in case of any audit or dispute.

2. Hiring third-party telemarketers

If you retain a telemarketer (e.g., a lead generation company) to engage in telemarketing on your behalf, you must include a term in your agreement requiring that the telemarketer comply with the Unsolicited Telecommunications Rules.

Engaging a third-party telemarketer does not shift any of your legal obligations, and brokerages are responsible for ensuring that third parties abide by the rules.

For more information, check out the following CRTC resources:

• National Do Not Call List Rules as they relate to the real estate industry
• Unsolicited Telecommunications Rules
• Compliance and Enforcement Regulatory Policy
• Compliance and Enforcement Information Bulletin