MODEL POLICY CONCERNING SOLICITATIONS SENT BY

Transcription

1 MODEL POLICY CONCERNING SOLICITATIONS SENT BY Disclaimer concerning the Use of this Model Policy: The following is a model that Texas REALTORS may use as a guide to develop an office policy related to solicitations sent by . The Texas Association of REALTORS does not represent or warrant that this model policy addresses all items that should be addressed in an office policy or that compliance with this model policy will eliminate any potential responsibility or liability by the company or its agents. Any company that sends solicitations by , either directly or through its agents, is responsible for compliance with applicable statutes and rules. A REALTOR who sends solicitations by must be familiar with the specific policy adopted by the REALTOR s company and must obtain appropriate training. Instructions: (1) Alternatives not addressed in this model policy are: (a) to prohibit the sending of any solicitations by ; or (b) permitting solicitations to be sent to addresses only to addresses supplied by the company. (2) Make any modifications to the following model policy that the company determines are necessary to encourage compliance with applicable rules and statutes. 1. Statement of Intent to Comply: It is the express written policy that all employees, brokers, and agents affiliated with (the company) are to comply with all rules and statutes applicable to solicitations sent by . Specifically, the company intends to comply with: (a) the Texas Electronic Mail Solicitation Act (Chapter 46, Business and Commerce Code); (b) Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM); and (c) administrative rules enacted by the FCC and other governmental agencies related to CAN-SPAM and Chapter 46 of the Business and Commerce Code. (When identifying the company in this paragraph, identify any corporate, LLC, or other entity by its chartered name and identify any assumed named with dba. For example, ABC Corporation dba Acme Real Estate. ) 2. Definition of an Transactional Relationship. For the purposes of this policy, a transactional relationship exists with a person with whom the employee, broker, or agent is procuring properties or working with on pending transactions (for example, sellers with current listings or buyers with current buyer representation agreements). A transactional relationship may also exist with past and previous clients and customers or other persons provided that the employee, broker, or agent has permission to send to the past customer or client. Permission may be granted Model Solicitation Policy 2/25/05 Page 1 of 6

2 under various forms, but the employee, broker or agent must be able to clearly demonstrate that permission was granted. 3. Requirements concerning any An employee, broker, or agent may NOT send any that: (a) falsifies transmission information or other routing information; (b) contains false, deceptive, or misleading information either in the subject line or in the text of the message; (c) contains any obscene or offensive material; (d) does not identify the employee, broker, or agent as the sender of the message; (e) does not contain the sender s and company s contact information containing at least the return address and the company s postal address; or (f) does not comply with: (i) Paragraph 4 if the message contains an advertisement; or (ii) Paragraph 6 if the message does not contain an advertisement. 4. When s containing Advertisements May be Sent: An employee, broker, or agent may not send an message that contains an advertisement to a person unless: (a) the message complies with Paragraph 3(a) (e); (b) the sender has verified that the recipients addresses are not on the company s do-not- list by following the procedure described in Paragraph 7A; (c) the message is not sent to an address with a domain name registered with the FCC as a commercial mobile radio service (CMRS) domain name (Note: The CMRS domain names may, and should, be maintained on the company s internal no list.); (d) an unsubscribe notice is conspicuously in the text of the message that informs the recipients how to unsubscribe and be placed on the company s do-not- list; and (e) one of the following conditions exists: (1) a transactional relationship exists with the recipient; or (2) the subject line is preceded with ADV:. Note: CMRS domain names are registered at /DomainNameDoanload.html. Such domain names send messages directly to wireless devices such as cell phones and pagers. Persons using CMRSs many times will have their primary boxes forward to the CMRS. The domain names affected by this restriction are those with the domains to which is sent directly to the CMRS. 5. Examples of s containing Advertisements: Examples of messages with advertisements include but are not limited to: (a) an message soliciting a service (for example, a listing or other agency relationship); (b) an promoting the service offered by the agent or company; Model Solicitation Policy 2/25/05 Page 2 of 6

3 (c) an sent to other brokers or agents announcing a new listing or a reduction in a sales price; (d) and containing the agent s or company s newsletters; and (e) e-cards in which the sender is promoting services offered by the sender or the company. 6. All Other Messages (Messages Without Advertisements): (a) Information sent to a person who requested the information is not considered to be a message containing an unsolicited advertisement provided that it does not contain additional unsolicited advertisements or information that were not requested. When ing information in response to a request for information, the sender must: (1) note in the text of the message that it is being sent in response to the recipient s request; (2) note in the text of the message the date the request was received; and (3) not insert unsolicited advertisement or information along with the sending the requested information. (b) Communications with existing customers and clients are considered to be client communications and not advertisements. (c) Communications to past customers and clients which contain advertisements must comply with Paragraph 4. Communications to past customers or clients that contain only information about the previous transaction and are not a solicitation of future business are not considered to be messages with advertisements. (d) to others requesting information or to facilitate a transaction for a customer or client may not contain advertisements. For example, the employee broker, or agent may request information from or provide information to a service provider such as a title company, lender, inspector, or other person in connection with a pending or prospective transaction. Such may not include unsolicited advertisements along with the The Company s Do-Not- List: (a) Before sending any message containing unsolicited advertisement, the sender must verify that the address is not on the company s do-not- list. Specifically, the employee, broker, or agent must adhere to the following procedure. (Describe the step-by-step process that the sender must follow to access the list.) (b) (name or title) is the person in the company who is responsible for maintaining the company s do-not- list. (c) The person named in Paragraph 6B is responsible for timely updating the company s do-not- list. The responsible person will comply with the following procedure when updating and storing the list. (Describe in reasonable Model Solicitation Policy 2/25/05 Page 3 of 6

4 detail the downloading and updating procedure. Consider identifying the website or other location at which the list will be maintained by the responsible person, the format in which the list will be maintained, and any internal distribution of the list or any notice to persons in the company that the list has been updated. Requests to be removed from an distribution list or to be placed on the company s do-not- list must be honored within 3 days after receiving the request. Include in the do-not- list all domain names registered with the FCC as CMRS domain names ( Download.html)) (d) Addresses on the do-not- list will be maintained on the list for years (not less than 5 years) provided that all domain names registered with the FCC as CMRS domain names will remain on the list continually. Any purging of numbers on the do-not- list will take place under the following procedure. (Describe in reasonable detail the purging policy, if any, the company may want to adopt. Consider identifying how often purging may take place and who may authorize any purging.) (e) The company will monitor compliance with this policy. Specifically, (name or title) is responsible to periodically verify that the person responsible for maintaining the do-not- list is maintaining and updating the list in compliance with this policy. The person responsible for maintaining the list must maintain records that record the dates the list was updated. (Describe the record-keeping requirements under this paragraph.) 8. Unsubscribe Requests and Requests to Be Placed on the Do-Not- List and Removing Addresses from Agents Distribution Lists: (a) If an employee, broker, or agent receives an unsubscribe request, such a request is a request to place an address on the company s do-not- list. The employee, broker, or agent must promptly follow the following procedure. (Describe the step-by-step procedure one must follow to place an address on the list. Consider whether a standard request form will be used and how the request is to be transmitted to the person responsible for monitoring the list. Consider stating the times when the list must be updated and whether the employee, broker, or agent, who submitted the request, must later verify that the request was honored.) (Requests to be placed on the company s do-not- list must be honored not less than 3 days after the request is made by the person who received the e- Model Solicitation Policy 2/25/05 Page 4 of 6

5 mail. Therefore, employees, brokers, or agents receiving such a request must include the date the request was made of the employee, broker, or agent, as well as the date the employee, broker, or agent is submitting the request to the company. The person responsible for updating the list must update the list timely.) (b) If an employee, broker, or agent maintains distribution lists (for example, groups in programs), the employee, broker, or agent must delete addresses in these lists or groups that are on the company s internal do-not list. Agents who maintain their own distribution lists must run a check against the company s do-not- list not less than every days in accordance with the following procedure. (Describe the procedure that agents should follow in running a check of addresses against the company s internal do-not- list. Consider whether the company will send notice to each agent each time an address is added to the list.) (c) A request to unsubscribe to sent by the employee, broker, or agent is a request to be placed on the company s do-not- list and the employee, broker, or agent must, in response, follow the procedure outlined in Paragraphs 8A and 8B. 9. Use and Distribution of the Do-Not- List (a) The do-not- list maintained and used by the company may be used only for the purpose of complying with applicable statutes and rules. The company does not sell, rent, lease, purchase, or use the list for any other purpose. Any cost for maintaining the lists is paid by the company. The company does not allocate that cost to others. (b) An employee, broker, or agent may not give, copy, or distribute any information on the do-not- list maintained or used by the company to any person who is not an employee, broker, or agent of the company for any purpose, including but not limited to other brokerage firms, other agents, friends, relatives, or business associates. 10. Compliance with Policy and Training. (a) The company will monitor compliance with this policy by employees, brokers, and agents. (Describe the monitoring procedures.) (b) Before an employee, agent, or broker may send any messages that contain advertisements, the employee, broker, or agent must attend a training session concerning this policy and sign an acknowledgement that he or she has attended the training session and read this policy. (Describe the specific training session that the person must attend.) Model Solicitation Policy 2/25/05 Page 5 of 6

6 (c) Failure by an employee, broker, or agent to comply with this policy is grounds for termination of employment or affiliation. The company may seek all legally permissible reimbursement of any fines, penalties, or liability the company s incurs as a result of the employee s, broker s, or agent s failure to comply with this policy. Model Solicitation Policy 2/25/05 Page 6 of 6