Combating Those Cell Phone Rumors

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One need walk no farther than 100 feet in any airport concourse to see that the mobile phone is as common as the wheeled suitcase for all types of travelers. Similarly, not only has it been embraced by millions of people in the United States and abroad, some subscribers are replacing their residential land lines, using their mobile number as their only means of residential telephone contact.


My wife and relatives recently asked me about an e-mail circulating regarding telemarketing calls to cell phones and the national no-call registry. There were actually two rumors:


• A directory of cell phone numbers soon will be published for all consumers to have access to. This will open the door for solicitors to call your cell phones, using the precious minutes that we pay lots of money for. The Federal Trade Commission has set up a "do not call" list. It is called a cell phone registry. To be on the do-not-call list, you must call from the number you wish to register.


• Starting Jan. 1, 2005, all cell phone numbers will be made public to telemarketing firms. As of Jan. 1, your cell phone may start ringing off the hook with telemarketers, but unlike your home phone, most plans pay for your incoming calls. These telemarketers will eat up your free minutes and end up costing money. According to the national do-not-call list, you have until Dec. 15, 2004, to get on the national DNC list for cell phones.


From www.snopes.com/politics/business/cell411.asp (Aug. 9, 2005).


Though each rumor contained a grain of truth, the conclusions and most facts in both rumors were false. This column will describe the laws applicable to calls to cell phones so your business can comply with the laws (with the aid of your legal counsel).


The first rumor about cell phone numbers potentially becoming available for directory assistance is true, but it is false that solicitors can call those numbers unless the consumer registers them on the national no-call list. It is also false that the FTC has created a "cell phone registry" for this purpose.


A business cannot call a mobile telephone number, or any number for which the consumer is charged for the call, using a predictive dialer without express consent from the consumer. This rule is part of the Telephone Consumer Protection Act, administered by the Federal Communications Commission.


"Express consent" requires a specific opt in by the consumer for that telephone number (i.e., a business may not append or otherwise research, e.g. in a cell number directory, the cell numbers of its customers and legally call them using a dialer.) The FCC has ruled that a consumer who provides his telephone number to a business has expressly consented to calls to that number, absent instructions to the contrary.


So, if a consumer lists a cell number on an application as her contact number, the FCC has ruled that the consumer expressly consented to calls to that number, absent some other no-call request. A cell number directory assistance service, however, will not allow waves of telemarketing calls to those numbers, because any resulting "waves" would meet FCC legal action under the TCPA for illegal calls (with a potential penalty of $500-$1,500 per call). Simply making a cell number available in directory assistance is not express consent to call that number.


Nor does an established business relationship between a business and a consumer create express consent. Express consent requires more than a purchase, or inquiry about a business's services, under both FCC and FTC rules.


The second rumor is more of the same. The FTC lets consumers add their telephone numbers to the national DNC list, but cold calls to those numbers are illegal based on the FCC's rules. There is no deadline to add cell or residential numbers to the list, nor does a number being "public" affect whether calls to it are legal under federal law.


The FCC's rule against calling mobile numbers using a predictive dialer and its "porting" rules (effective May 24, 2004) have resulted in another list that businesses must access to ensure that their calls are legal. Because the porting rule means that any number can be a cell phone or a land line (because the numbers are interchangeable), any business using a predictive dialer for a calling campaign must ensure that calls are not placed to cell numbers.


This is true even for calls to that business's own customers (exempt from the national DNC list). The FCC created a number portability database administered by a third party that a caller must access at least every 15 days to "scrub" numbers ported from land lines to mobile lines from its calling files (absent express consent to call those cell numbers).


All other telemarketing laws that apply to residential calls also generally apply to calls to cell phones. These laws prohibit caller ID blocking, fraud, deception, etc.


In conclusion, telemarketing calls to cell phones are not illegal under federal law. A telemarketer can "hand dial" those numbers as long as the call complies with other applicable laws such as the Telemarketing Sales Rule. However, the FCC has implemented a strict rule requiring that predictive dialer campaigns to those numbers be placed only with the express consent of the subscriber. These numbers are unlikely to "ring off the hook" with calls anytime soon.


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