DMA Petitions for Portability Safe Harbor

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The Direct Marketing Association filed a petition yesterday asking the Federal Communications Commission to create safe-harbor rules for telemarketers trying to avoid calls to cell phones in the era of wireless number portability.

The petition, filed jointly with the Newspaper Association of America, asks for standards that would give telemarketers some level of protection from prosecution for accidental violations of the ban on telemarketing calls to cell phones using automated dialers.

An FCC spokeswoman said the agency had just received the petition and was reviewing it.

Launched in November, wireless number portability allows consumers to keep the same telephone number when they switch cell phone providers or switch from a landline to wireless. Currently, telemarketers have no way of tracking such changes, and the FCC has said it will brook no violations of the cell phone ban even if telemarketers make an effort to comply.

The DMA has sought access to the database of switched telephone numbers from Neustar, the telecommunications network administrator that maintains the database. However, even if its gets such access, telemarketers won't be able to obtain updates from the database instantaneously, the DMA said in its petition.

That means even a well-intentioned telemarketer could place an illegal call to a cell phone recently switched from a landline if the call is placed between the time the number is switched and the time the telemarketer has had a chance to update its suppression file.

The FCC bans all automated-dialer calls to cell phones and does not make exceptions for telemarketers who scrub their lists daily but accidentally make a violation. There is no way to avoid violations unless telemarketers switch to manual dialing, the DMA said.

Under the DMA's proposed safe-harbor rules, telemarketers would be safe from an FCC complaint so long as they subscribe to a wireless suppression service and update their lists to screen for cell phones at least once every 30 days. Telemarketers also would have to institute written policies to comply with the cell phone ban and train personnel about the restriction to enjoy the safe harbor.

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