Phone Solicitations During COVID-19
LOUISIANA REALTORS • April 10, 2020
CORONAVIRUS: IMPACT ON TELEPHONIC SOLICITATION[1]
By: Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz,
PC450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
As a REALTOR®, calling and texting using your phone to solicit new business is an important part of your marketing strategy, especially during the COVID-19 outbreak when social distancing means there are limited in-person interactions. However, during a state of emergency declared by the Governor, certain telemarketing activities are not allowed. The below questions and answers address the impact of the COVID-19 pandemic and Governor Edward’s Order
declaring a statewide public health emergency on REALTORS’® telemarketing activities.
1. Does Governor Edwards’ order declaring a public health emergency mean telemarketing restrictions are in place?
Short Answer: In general, telephonic solicitation by a telephonic solicitor is prohibited during a state of emergency as declared by the Governor, unless the activity falls within an exception listed in the law.
Louisiana law prevents telephonic solicitors from engaging in telephonic solicitation[2] “during a state of emergency as declared by the governor,” with some exceptions.[3] Some of these exceptions include calls made
- in connection with an outstanding debt or contract
- in response to an express request of the person called, and
- to any person with whom the telephonic solicitor has an existing business relationship.[4]
Applying these exceptions, you can for example still call those parties with whom you have a contract such as seller with whom you have a listing agreement. You can return calls made to you and initiated by the other party, and call persons with whom you already had an existing business relationship. It is important to note these restrictions under Louisiana’s law are not limited to telephone calls; rather, they include “any voice or data communication made by a telephonic solicitor.” This includes text messages for example.
Governor Edward's Order
dated March 11, 2020, Proclamation JBE 2020-25, declared a statewide public health emergency as a result of the COVID-19 pandemic. The Order was extended by the Governor’s Proclamation JBE 2020-41
dated April 2, 2020. The Governor’s public health emergency declaration is now effective until April 30, 2020, but this may be extended further by the Governor in additional orders.
When a state of emergency has been declared that requires a shutdown of solicitation, the Louisiana Public Service Commission (“PSC”) updates its website to reflect this. As of the writing of this article, the most recent update to the PSC’s website does not mention the current Order by Governor Edwards regarding telephonic solicitation restrictions in effect.[5]
It may possibly be an oversight that the PSC’s website has not yet been updated, or it may be updated at any time. Further, the penalties for violating the law on telephonic solicitations can be severe.[6] Therefore, so long as the Governor’s declaration of a state of emergency remains in place, it is recommended to refrain from telephonic solicitations unless the activity falls within an exception listed in the statute.
2. Can I still make cold-calls to people who have their properties listed for sale by owner?
Short Answer: Yes, so long as the seller’s contact information is listed in the advertisement of the property.
La R.S.45 § 844.31. provides in pertinent part:
A. During a state of emergency as declared by the governor, no telephonic solicitor shall engage in telephonic solicitation except for the following reasons:
(1) The telephonic solicitation is in response to an express request of the person called. For purposes of this Section, in the case of property or services advertised and offered to sale directly by the owner or provider thereof, if such advertisement or offer contains the phone number of the owner or provider or its authorized representative, then such advertisement or offer shall be deemed to be an "express request" by the owner or provider for inquiries relating to the sale or purchase of such property or services. The authorization for telephonic solicitation provided for in this Paragraph shall expire six months after the "express request" is granted. . . . ( emphasis supplied)
Although the general rule during a state of emergency declared by the Governor is that telephonic solicitation is not allowed, there are exceptions.[7] One exception is if a seller publishes his or her phone number in the advertisement for the property for sale by owner. In such a case, the seller is deemed to have “expressly requested” inquiries related to the sale or purchase of the property. You would not be prohibited from calling or texting the seller if the seller’s advertisement of the property contains his or her phone number, even during the state of emergency declared by the Governor. If the person called does not wish to be called after such initial call, then you should not call that person and should maintain a list of such persons.
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on April 9, 2020 at 11:00 a.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on April 9, 2020 at 11:00 a.m.
[2] “Telephonic solicitation” means any voice or data communication made by a telephonic solicitor to a residential telephonic subscriber for any of the following purposes:
(i) Encouraging a sale or rental of or investment in property, consumer goods, or services.
(ii) Encouraging an extension of credit for property, consumer goods, or services.
(iii) Obtaining information that will or may be used for the direct solicitation of a sale or rental of or investment in property, consumer goods, or services or an extension of credit for such purposes.
(iv) Soliciting of a contribution to a charitable organization.
La. R.S. 45:844.31.
[3] See La. R.S. 45:844.31.
[4] See id.
[5] The PSC website states:
Current Status: No Mandatory EOC Presence
In the event of a state of emergency as declared by the governor, this site will contain information regarding permitted or prohibited telephonic solicitation activity.
The Louisiana Homeland Security and Emergency Assistance and Disaster Act, R. S. 29:721, et seq., confers upon the governor of the state of Louisiana emergency powers to deal with emergencies and disasters, including those caused by fire, flood, earthquake or other natural or man-made causes, in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters and to preserve the lives and property of the people of the state of Louisiana.
During a state of emergency as declared by the governor, while the Office of Homeland Security and Emergency Preparedness requires the Louisiana Public Service Commission to report to the Emergency Operations Center ("EOC"), no telephonic solicitor shall engage in any form of telephonic solicitation (except as specifically allowed by R. S. 45:844.31), however, The Louisiana Public Service Commission has not been required to report to the Office of Homeland Security and Emergency Preparedness in response to any executive order or proclamation issued as a result of any recent event. Therefore, the general provisions the LPSC Do Not Call Program General Order, LPSC General Order R-29617, remain in effect and no additional telephonic solicitation prohibitions are necessary at this time. Should the Commission subsequently be required to report to the Office of Homeland Security and Emergency Preparedness, in response to a state of emergency as declared by the governor, all telephonic solicitation will be prohibited and a revised notice will be posted at that time.
See http://www.lpsc.louisiana.gov/emergency.aspx
(showing last update dated July 26, 2019).
[6] Violations are punishable by a fine of up to $1,500 per violation. See La. R.S. 45:844.33
[7] See La R.S. 844.31.
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