FCC Will Examine Safe Harbor For Wireless Portability

In an apparent change of heart, the Federal Communications Commission is considering the establishment of safe-harbor rules for telemarketers who run afoul of the ban on telemarketing to cell phones due to wireless number portability.

The FCC said it would take public comments on the proposal for rules that would protect telemarketers from penalties when calling mobile devices that were recently ported from landlines. Previously, the FCC had stated that it would not change rules regarding telemarketing to cell phones despite industry warnings that telemarketers had no way to track landline numbers that had been switched to cell phones.

The Direct Marketing Association and the Newspaper Association of America lobbied the FCC to institute safe-harbor rules.

“The safe-harbor issue was included in response to DMA and the newspapers' concerns,” FCC spokeswoman Rosemary Kimball said.

The FCC will begin taking comments on the proposed safe-harbor rules after it publishes the proposal in the Federal Register, Kimball said. No date has been set for the start of the public comment period.

The DMA called the proposal a “positive sign” and said the FCC had been cooperative on wireless number portability. The association is encouraging its members to send comments when the comment period begins and will issue a statement of its own.

“We've been working with them for some months on this issue,” said Louis Mastria, DMA spokesman. “They've been aware of our concerns for some time. This is the first overt action they've taken.”

The FCC issued the proposal for safe-harbor rules on calls to wireless phones simultaneously with its announcement March 11 that it would look at ways to protect consumers from spam to mobile devices under the CAN-SPAM Act.

The FCC also is seeking comment on increasing the frequency with which telemarketers must obtain national no-call list updates from once a quarter to every 30 days. The move would bring its rules in line with the Federal Trade Commission and a congressional mandate.

Wireless number portability took effect in November. Aimed at increasing competition in the wireless industry, portability lets consumers keep the same phone number when switching cell phone service providers.

It also lets them keep the same number when they wish to give up their landline phone service and switch to a cell phone. The problem was that there was no way to track such switches and thus give telemarketers a way to avoid calls to switched numbers.

FCC rules prohibit calls by automated dialing systems, including predictive dialers, to cell phones or any number where the user recipient must pay for the call. Prior to wireless number portability, telemarketers could avoid calls to cell phones by blocking calls to area codes and blocks of prefixes that were set aside for wireless use.

When wireless number portability launched, the FCC said it would be up to the industry to find a way to avoid calls to cell phones. Telemarketing compliance providers said they were working on the problem, and the DMA initiated talks with NeuStar, the telecommunications administrator that tracks ported numbers.

However, relations between the DMA and NeuStar were rocky at first, and compliance providers have yet to provide a solution to the issue. Furthermore, the DMA has noted that even if it gains access to NeuStar's database of ported numbers, telemarketers won't be able to get updates from it instantaneously as required by the FCC.

“No one wants to be inadvertently calling cell numbers,” Mastria said. “It's a bad position for a marketer to be in.”

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