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NYSAR provides its members with access to industry white papers on a variety of key topcs including:

Do-Not-Call white papers
Risk management
Insurance Reform

The articles available are provided to the New York State Association of REALTORS by PossibleNOW, USI Affinity and Pearl Insurance. The views and/or opinions expressed in these articles, legal or otherwise, are those of the author and are not necessarily the views and/or opinions of the New York State Association of REALTORS.

White Papers

Is The Text Message Campaign Information, Solicitous Or Dual-Purpose? - By this point, you may already be aware of the risks associated with contacting consumers on their mobile phones using an ATDS. More specifically, you may be aware of the recent, big brand names scrutinized under the TCPA for sending non-compliant text messages to consumers. Considering the risk of the current regulatory environment, you may be wondering if you should even consider communicating with consumers via text message.

The Most Common Misconception of Text Message Compliance - There are few, if any, riskier activities than sending automated calls or texts to wireless phones without the proper level of consent under the TCPA and/or state-specific requirements.

What's New With The FCC's Most Recent Declaratory Ruling - In August, the FCC released its Declaratory Ruling in response to petitions by Blackboard, Inc. (Blackboard) and jointly the Edison Electric Institute and the American Gas Association (EEI/AGA). Generally, the FCC provided slight relief to these industries in a very specific set of circumstances.

Text Messages: Concussions Aren't the Only Problem for NFL Teams - Most organizations reaching out to their customers' cell phones via text message or phone call with an ATDS are not immune to the TCPA. This includes one of the most successful and profitable businessess on this planet, professional football teams. 

Inflation Hits FTC Penalty Amounts - As a result of inflation, the Federal Trade Commission (FTC) has finalized amendments that will raise the maximum civil penalty from $16,000 to $40,000 per violation.

Why Notifying Consumers That "Calls May Be Monitored" Is Critical To Your Organization - "This call may be monitored for quality assurance and training purposes." We've all heard this disclosure. Some of us roll our eyes and wonder, is this really necessary? We all know calls are recorded these days.

FTC Adopts New Amendments To Telemarketing Sales Rule - After nearly two and a half years since their initial proposal, several amendments were made to the Federal Trade Commission’s Telemarketing Sales Rule (TSR). These amendments to the TSR are intended to protect consumers, as well as clarify some issues for businesses.

The Challenges of Accurately Identifying Location - Companies often struggle to implement the most accurate process for determining where their customers and prospects are located as the location of an individual can have an impact on compliance considerations.

Text Messaging Dos and Don'ts: 5 Ways to Keep Mobile Marketing Compliant - If you're reading this, you're most likely connected to the world of direct marketing and have certainly heard all the talk surrounding the FCC's new Declaratory Ruling regarding TCPA.

The Top 5 Compliance Essentials Every Company Needs - For this month's newsletter, CompliancePoint consultants put together a list of compliance essentials they recommend to any company engaging in consumer contact programs and activities. As you work towards your company's compliance goals, they recommend addressing these 5 compliance essentials.

Why Texting Is An Effective, But Risky Means Of Communication - As discussed in one of CompliancePoint's blog posts, more than 90% of adult Americans own a wireless phone. Americans are more likely to have their cell phone within arms-reach than they are their computer, and on average a consumer's text messages are viewed more quickly than emails. Combine these facts with the sheer number of cell phone users and texting becomes a very attractive channel for sending marketing and informational messages.

Can You Legally Make That Call Today? Why the Holiday Season May Not Be Over! - Now that you're engaging your best efforts to achieve normalcy at the start of this New Year, it's likely the last thing on your mind is the holiday schedule for 2015. However, if your company places telemarketing calls to consumers, you should consider the prohibitions for placing calls on certain federal and state-specific holidays.

How 2 Keep TXT MSG Rules Str8 in 2015 - These days, nearly everyone has a cell phone within arm's reach 24/7. According to Pew Internet Research, 91 percent of all U.S. adults own a cell phone. Mobile messages have a 97-percent open rate, generally within five seconds of receiving the message, according to the Digital Marketing Association.

FTC Increases Fees To Access National Do Not Call Registry - Effective October 1, 2014, the Federal Trade Commission (FTC) increased the annual fees for access to the National Do Not Call (DNC) Registry. As you know, the previous annual fees for the National Registry were $59 per area code or $16,228 for all area codes across the United States. The new fee structure is $60 per area code or $16,482 for all area codes.

The Continuing Court Debate of What Constitutes an Automatic Telephone Dialing System - A recent ruling by the Southern District of California illustrates the conflicting and challenging opinions issued by various courts across the country regarding the term Automatic Telephone Dialing System ("ATDS") and the meaning of "capacity" under the Telephone Consumer Protection Act (TCPA).

How To Determine If Your Dialer Is An ATDS - In response to the Telephone Consumer Protection Act (TCPA) amendments that went into effect last fall, many companies have been working to adjust their dialer technology so that it does not fall under the definition of an automated telephone dialing system (ATDS).

Top 5 Compliance Mistakes (And How to Avoid Them) - Compliance errors can be very costly and keeping track of all compliance elements of your company's consumer contact activities can be challenging. As you work towards your company's compliance goals, we recommend avoiding these 5 common mistakes along the way.

Compliance with TCPA Rules is Still a Challenge - The new rules and regulations surrounding the Telephone Consumer Protection Act (TCPA) are becoming increasingly difficult to navigate. And, at times, there are conflicting interpretations of these rules by the courts.

Clouds Growing on the Telephone Marketing Horizon - Sen. Charles Schumer will be introducing new legislation that will raise fines and create harsher penalties for telemarketing companies who violate federal "do not call" rules.

Does "Capacity" Really Define An ATDS? - Effective October 16, 2013, any telemarketing call made to a consumer's wireless telephone using an automatic telephone dialing system (ATDS) absent the consumer's prior express written consent is prohibited. Calls made without the use of an ATDS are not subject to the TCPA's consent requirements.

The Class Action Minefield - Class action lawsuits are on the rise in a big way. Expect to see even more when the October 16th effective date for the new Prior Express Written Consent passes and claims of treble damages are amassed.

Revisiting The Value Proposition Of Compliance - The Federal Trade Commission continues to announce settlement actions with companies regarding Do Not Call and pre-recorded message issues. Several of these settlements resulted in multi-million dollar payments to the US Treasury and 20 years of compliance monitoring "help" from the regulators.

The New Threat for TCPA Class Actions - CompliancePoint has witnessed an astonishing increase in the number of class action lawsuits brought under the Telephone Consumer Protection Act (TCPA) relative to calls to mobile telephones using an Automatic Telephone Dialing System (ATDS). Defendants in these cases have often unwittingly made errors that exposed them to risk. These risks will be magnified many times after October of this year when the new TCPA-mandated consent requirements go into effect.

The New TCPA Rules are Approved; Are You Ready? - The countdown has officially begun for the effective dates published by the Federal Communications Commission (FCC) regarding the amended Telephone Consumer Protection Act (TCPA). On October 16, 2012, the Office of Management and Budget’s (OMB) published the approval of the FCC's amended TCPA regulations in the Federal Register.

Understanding the Rules About Political Robocalls - Earlier this month, the Federal Communications Commission issued an Enforcement Advisory regarding political robocalls. With election time coming, the FCC issued the Advisory "to promote more widespread understanding of the restrictions imposed by The Telephone Consumer Protection Act of 1991 (TCPA) and corresponding Commission rules governing political telephone calls."

Seller & Telemarketer Compliance Must Be Mutually Supportive - Federal and state regulators have made it very clear that all parties who play a role in telemarketing are responsible to comply with the laws. Many FTC settlement actions have shown that sellers cannot contract away compliance, while other settlements have demonstrated that service providers share in the requirement for due diligence. The FTC has also announced hefty judgments against companies who had relied upon their list broker for compliance.

A Troubling Recent Class Action Decision - As most of you already know, under the TCPA, it is unlawful to place a call for any purpose, utilizing an Automated Telephone Dialing System (ATDS), to a wireless device without the called party’s prior express consent. As we have communicated several times, this consent requirement will soon be even higher under the revised TCPA.

Telephone Consumer Protection Act (TCPA) Final Rules Status - Many of our clients are reaching out to us for an update on the status of FCC 12-21 Report Order and Final Rules released on February 17, 2012. As you may remember, there were several significant changes to the TCPA contained in the final rules.

Declining Landlines Equal Increasing Compliance Complexity - According to a study by the National Center for Health Statistics one out of every four American families does not own a landline phone. Instead, 25% of American households are only using mobile phones. Further reinforcing the primacy of mobile devices, the study found that 15% of families that doown landlines receive all or almost all calls through cell phones.

The Complex Maze Of Jurisdiction Issues To Consider - CompliancePoint consultants are often asked to consider the compliance implications for consumer contact programs. Companies often limit their analysis to the jurisdictional questions regarding the physical location of the phone call’s recipient. But class actions, courts and disparity between federal and state laws demand a broader, multi-faceted analysis of requirements.

New Wireless Rules & Other Significant Impacts on Telemarketing - The FCC’s long awaited Report and Order and accompanying Final Rules relating to changes to the Telephone Consumer Protection Act (TCPA) was released Friday, February 17, 2012. The FCC had announced that it was considering several changes in a Notice of Proposed Rulemaking released in 2010.

Compliance Predictions for 2012 - With the FTC urging US businesses to integrate “privacy by design” into product and services and to provide consumers with more privacy transparency, accountability and consumer choice, 2012 may prove to be a very busy year for consumer protection and enforcement actions.

The Way Ahead for Telemarketers - Many of you may be following the recently introduced H.R. 3035. The bill had bipartisan support and received endorsement from numerous business and marketing advocates. 

Consumer Choice + Preference Management = Consumer Trust - The privacy debate is heating up over consumer privacy protection, consumer choice and what use of consumers' personal data. 

Have You Considered Implementing Dialing Policies? - The Telemarketing Sales Rule has several provisions designed to prevent repeatedly or continuously calling consumers, with the intent to annoy, abuse, or harass. While your intentions may have been honest, repeated calls that result in complaints may require you to prove that you did not intend to violate the rules. 

How will Canada's New Anti-Spam Laws Affect Your Business? - The US CAN-SPAM Act preempts most state email laws (except in cases involving fraudulent activities) for a very good reason. Chief among them is the question, "how do companies that conduct email marketing know the state where the email is being sent?"

The Components of the Compliance Life Cycle - Your company may be challenged by a multitude of compliance requirements that touch many facets of your operation and to some degree, involve every employee. While each compliance area has unique requirements, they should all share a common life cyle methodology.

What Does Your Data Say About You? - There are many aspects of our lives for which we take precautions to protect ourselves and our loved ones from possible catastrophes. We buy insurance, remove the dying tree next to the house or waterproof the basement. We do not believe that a disaster is likely to happen to us, but we don't want to take the risk of being unprepared because the consequences are simply too great.

Sellers & Service Providers Must Be Compliance Partners - Numerous Federal Trade Commission (FTC) settlements have illustrated the fact that, in the FTC's view, sellers may not avoid liability for the noncompliance of their telemarketers. In fact, the FTC "has consistently maintained that sellers are responsible for their marketers' telephone calls to solicit purchases of the seller's goods or services," according to a commission comment to the Federal Communications Commission (FCC) made public on May 17.

How Well Do You Know Your Marketing Partners? - Most companies rely upon partners to provide some role in consumer contact programs. Sellers may contract with third party contact centers or buy leads from lead generators. Service bureaus may perform work for a multitude of clients. Other companies may provide data hygiene or append services, fulfill mail or email and so on. Partner companies may also provide compliance related services. While it is true that these relationships can provide value for all parties, they can also introduce risk.

The Rise of the Professional Plaintiff - We are seeing a drastic increase in companies who are threatened with legal action from "professional plaintiffs." Some of these "professional plaintiffs" have been so bold as to write books on how they make hundreds of thousands of dollars annually through their activities. One such book is "Lawsuit: How I Turned the Tables on Telemarketers & Debt Collectors" by Ryan Swanberg.

A Defendable Position Imperative: Compliance Training & Monitoring - Many companies we've worked with have made wise investments in compliance guidelines and policy development documented in their compliance manuals. During the pre-assessment portion of our engagements we typically review any existing policies before our arrival at the client site. This enables us to review the policies for compliance as well as gauge employee understanding and adherence to the policy during our discovery.

Mobile Marketing: New Opportunities, New Challenges - The popularity, capabilities and uses for mobile devices is exploding faster than anyone may have imagined possible. Mobile device functionality extends beyond phone calls to include cameras, video players, TV, e-mail and text messaging, GPS and mapping devices, Internet access and more.

A Reflection on Compliance Issues in 2010 and the Challenges Ahead for 2011 - This year brought about two significant changes in consumer privacy preference laws. The first proposal involved prerecorded telemarketing calls. The FCC published a Notice of Proposed Rulemaking (NPRM), which proposes new restrictions regarding artificial or prerecorded telemarketing calls (known as robocalls) under the TCPA. The proposed rule would more closely align the FCC's telemarketing rules to the Federal Trade Commission (FTC) Telemarketing Sales Rule (TSR) and could provide for a more stringent express consent standard for dialing mobile phones.

State Holidays May Impose Calling Restrictions - The holiday season is upon us and this festive time of the year also brings special calling time restrictions regarding Do Not Call compliance. Telemarketing on federal and state holidays is forbidden in several states. Although the federal rules allow for calling from 8 a.m. to 9 p.m. seven days a week with no holiday restrictions, your calling activity must adhere to the most restrictive state prohibitions.

Rules Governing the Use of "Free" in Advertising and Telemarketing - If your telemarketing scripts or advertisements use the word "free" (or similar words) to promote your product of service offerings, you should be aware of the Federal Trade Commissions's rules regarding this commonly used practice. The FTC considers improper use of this four letter word as deceptive and unfair to consumers.

Strategies for Reducing Consumer Complaints - If your business makes outbound telemarketing calls to consumers, including to web inquiries or referrals, your calls can generate consumer complaints. Even if you are certain that 100% of your outbound calls are compliant, you may still have to deal with the onerous task of answering state and perhaps federal inquiries. Our research indicates that roughly 70% of consumer complaints are about compliant calls, but the consumer is assumed to be right and you must prove that your call was compliant.

Compliance in the Global Marketplace: Thinking Globally, Acting Locally - Businesses increasingly operate on on international scale. Your success depends on your ability to operate profitably in diverse geographic markets and comply with the laws of the various countries into which you market products and services. You may face the challenges of coordinating with many people, in multiple jurisdictions, while complying with the distinct rules on data protection and privacy law, data transfer and the local marketing laws of each country.

Call Data Audits; An Imperative to Building a Defendable Position - Every day companies may place hundreds of thousands of outbound calls that are in violation of Do Not Call laws, wireless rules, or corporate or seller-specific requirements. Most companies are unaware that the calls were in violation of DNC laws. This is because they believe that the upstream processes are all compliant, so if everything works as designed, there should be no cause for concern.

How Do You React in a Crisis? - Toyota. BP. You? It may seem like you have nothing in common with these two global and recently tainted brand names, but have you considered the impact one negative event could have on your firm and professional reputation?

Understanding the Requirements for Prerecorded Message Delivery - The delivery of prerecorded messages has long been a popular method of contacting consumers. Prerecorded messages allow telemarketers to contact consumers much more efficiently than live calls and at a much lower cost. These messages, however, are not nearly as popular among consumers.

Does Your Company Meet the Red Flags Rules Requirements? - Any company that regularly extends or merely arranges for the extension of credit is subject to the Red Flags Rule. Under the Red Flags Rule, companies must design and implement a written identity theft prevention program that is designed to detect, prevent, and mitigate identity theft in connection with the opening of a "covered account" or any existing covered account.

FTC’s New Privacy Framework: What Could This Mean for Telemarketers? - At the American Teleservices Association’s (ATA) summit this week, FTC Director David Vladeck spoke about current issues of importance at the FTC. Among other things, Director Vladeck addressed the FTC’s concern regarding the perceived ineffectiveness of the current privacy framework. His comments made it clear that changes are likely.

The FCC's Recent Proposed Rule: What it Could Mean for Your Business - The Federal Communications Commission issued Notice of Proposed Rulemaking on January 22, 2010. We had anticipated the official posting of the proposed rule in the Federal Register. On March 22, 2010, the Federal Communications Commission (FCC) officially posted its proposed rule (CG Docket No. 02-278; 10-18) in the Federal Register to revise rules under the Telephone Consumer Protection Act (TCPA). Public comments are due on or before May 21, 2010. 

Are Your Calls Compliant at the Time of Dial? How to be 100% Sure! - Over the years we have audited millions of our clients’ dial records to determine if calls were compliant at the time of dial. Our audits include Do Not Call (including available grace periods), wireless, EBR exemption rules, and call abandonment compliance. We can also audit total attempts to the same number.

Why Compliance Training is Critical - An effective compliance training program can contribute to the success of a business. Well-trained employees have more confidence and are better prepared to achieve corporate tenets even when explicit guidance is not available. Companies that invest in compliance training gain the additional benefit of risk reduction through compliant employee performance and demonstrated ongoing efforts to comply. 

MSCM Mobile Marketing Compliance - This is the second part of our 2-part series regarding mobile marketing compliance. Last month’s article focused on SMS. This month we turn our attention to MSCM. Again, the two primary mobile marketing delivery mechanisms are Short Message Service (SMS) and Mobile Service Commercial Messages (MSCM). While both of these technologies deliver messages to mobile devices, the regulatory requirements are vastly different. 

A First Look at SMS Mobile Marketing Compliace - Mobile marketing efforts in the US are increasing exponentially. Even so, US marketers’ use of the mobile marketplace lags behind many other countries. As technologies become available to enable more economical and widespread use of mobile marketing campaigns, enforcement of laws is likely to become more prevalent. We will address SMS compliance in this month’s newsletter and MSCM next month.

Tips on Responding to a State Attorney General's Inquiry If you have ever prepared a response to an Attorney General’s investigative inquiry, you may question how to properly position your compliance efforts. Unlike federal investigations, Attorney General inquiries may be based on a single consumer’s allegation of violations of Do Not Call or telemarketing laws. Our experience has shown that there are several ways that you can improve your compliance position, even if the consumer’s allegation is true.

Test Your Knowledge of These Do Not Call Laws During our years of providing consumer privacy preference compliance services, we have encountered many unique requirements, especially at the state level. The launch of the Canadian Do Not Call List further added to the complexity and confusion. For this month’s article, we’d like to point out some of these unique requirements as well as some other interesting compliance facts.

Consumer Contact Attempts: How Many are Too Many? Instituting reasonable dialing attempt guidelines will greatly reduce your risk of dealing with consumer complaints. This should be a part of an overall strategy to reduce complaints through proactive measures including scripting modifications. 

Are you ignoring state telemarketing rules? Our consultants have performed dozens of compliance assessments over the years. One of the most common risk factors we identify for our clients is failure to comply with more restrictive state telemarketing and Do Not Call (DNC) requirements. It amazes us that so many companies perceive that simply following federal requirements is sufficient. Nothing could be further from the truth because you must also comply with state requirements.

Foreclosures, REOs, and Short Sales! Oh, My! In today’s market, more real estate professionals are acquiring listings for homes in foreclosure. Find out about the risks involved in these transactions and how the Pearl Insurance Real Estate Errors & Omissions Program can help protect your firm against claims arising out of these sales—read Pearl’s article titled Does your Real Estate E&O Policy protect you in REO and short sales? 

Essential Tools for the Compliance Officer- Professionals in the consumer marketing compliance arena face challenges to keep up with the myriad of federal and state regulatory requirements. The spectrum of requirements includes federal and state Do Not Call, telemarketing, CAN-SPAM, Junk Fax Prevention Act, US Postal Codes, and Canada’s new DNCL and Unsolicited Telecommunications Rules. 
Many states also have e-mail, fax and mail laws. Compliance professionals may wear several hats with marketing compliance being just one of many responsibilities. Marketing compliance education and resources are becoming increasingly available to ease the burden of staying current on requirements. 
This month’s newsletter describes a few of our recommendations.

Ensure That You Memorialize Critical Compliance Events - It is estimated that nearly 70 percent of consumer complaints are about legal calls. These legal calls often lead to state Attorney General inquiries or even a Federal Trade Commission Civil Investigative Demand (CID). The consumer’s complaint is assumed to be valid. Your company must produce sufficient evidence to refute the consumer’s claims or you may be exposed to significant fines. This month’s topic discusses what you should memorialize and why. 

Escalation Plans Are An Essential Due Diligence Component - When CompliancePoint consultants work with clients to assess their direct marketing compliance posture, we want to see the issue escalation plan. A company that does not have a formal escalation plan and rigid enforcement policy is exposed to risks emanating from events that occurred without their knowledge.

Taking Your Members Green - Why You Should Help Your Members Go Green and Go Paperless - Consumers expect two things from businesses today: technological proficiency and environmental awareness. Real estate is not immune to those expectations. Providing paperless solutions to your members will help them meet and exceed those expectations, while improving their bottom line.

Do Your Purchased Leads Meet the Exemption Requirements? - A recent FTC settlement provides some very useful insights regarding placing outbound sales calls under an Established Business Relationship (EBR) exemption with leads from aggregator sources. A fundamental principle used to determine if an EBR exists is “consumer expectation.” Would a consumer expect YOUR company to call them because they provided their information to a lead aggregator? 

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Risk Management

Cover Your Assets With Document Retention - Pearl Insurance looks at document retention and how it can be your best defense against errors and omissions allegations.

Personal Injury: Do You Know Your Policy’s Definition? - Pearl Insurance looks at personal injury and its meaning when applied to errors & omissions insurance.

Agent-Owned Real Estate: The Code and You - Pearl Insurance looks at the NAR Code of Ethics and the sections that deal with REALTOR-owned real estate.

Back to E&O Basics: Resolve to Reduce Your Risk of Being Sued - Pearl Insurance provides insight as to how brokerages can reduce their risk of being sued. Suggestions include: Obtain a written seller’s disclosure form, conduct a visual inspection of the property and investigate red flags, disclose any conflicts of interest in writing and follow pre-established office procedures, among other things.

Real Estate Marketing in an On-Demand World: Considerations for Online Advertising - In today’s technologically advanced society, homebuyers no longer rely on the Sunday classifieds for help in their property searches. Accustomed to obtaining information whenever they want, most now explore their housing options online. How can you gain their attention when they turn to the Internet?

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Insurance Reform

What Does the Individual Mandate Mean to Me? - A key provision of the Affordable Care Act (ACA) is the "individual mandate," which requires most individuals to purchase health insurance coverage or pay a penalty.

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Featured Content

The September/October digital edition of New York State REALTOR is now available!

Learn how to solve your tech problems with one easy phone call, understand how to implement simple steps to keep yourself safe, tips on how to be tech savvy and more in the September/October issue of New York State REALTOR magazine. Read the latest issue.
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