On November 24, 2003, the Federal Communications Commission (FCC) implemented new rules allowing for local telephone number portability between wireline and wireless carriers. Customers within the 100 largest Metropolitan Statistical Areas in the country are now free to transfer their landline telephone numbers to wireless carriers located within the same geographic region. The FCC estimated that as many six million customers would seek to port to wireless carriers within the first week alone, and one industry survey indicated that up to 16% of all residential customers with landline service would try to port to wireless. This wholesale shift of wireline telephone numbers to wireless carriers is likely to create significant compliance issues for outbound telemarketers.
The FCC's regulations under the Telephone Consumer Protection Act (TCPA) prohibit persons from initiating outbound calls using an "automatic telephone dialing system" to any wireless phone, pager or other service for which the called party is charged for the call. In its recent rulemaking amending these TCPA regulations, the FCC clarified that predictive dialers fall within the definition of an automatic telephone dialing system. Thus, the FCC's regulations effectively prohibit the use of predictive dialers to place outbound telemarketing calls to wireless telephone numbers. Moreover, unlike other provisions of the TCPA regulations, this prohibition does not have an established business relationship exemption or a safe harbor for inadvertent predictive dialer calls to wireless numbers.
In its rulemaking, the FCC acknowledged that, as a result of its new wireline to wireless portability rules, telemarketers would need to take steps to identify, and refrain from calling, those telephone numbers previously used for wireline service but now ported to wireless service. However, it took the position that “information is available from a variety of sources to assist telemarketers in determining which numbers are assigned to wireless carriers.” As such, rather than mandating a specific method of identifying wireless numbers, the FCC stated that it would “rely on the telemarketing industry to select solutions that best fit telemarketer's needs.”
Contrary to the FCC's position, it is not at all clear that telemarketers currently possess the ability to distinguish between landline and wireless telephone numbers. Neustar, Inc., the North American Numbering Plan Administrator and Local Number Portability Administrator, is responsible for administering landline to wireless switches and, thus, would appear to be the entity best able to provide this information to telemarketers. However, in a November 17th letter to the FCC, the Direct Marketing Association (DMA) indicated that Neustar had failed to respond to its requests for cooperation in determining which telephone numbers had been ported to wireless lines.
In response to the DMA's letter, the FCC and Neustar have put forth three possible solutions to allow telemarketers to obtain access to information concerning wireless telephone numbers:
- Neustar could post a web site which would contain a list of wireless telephone numbers updated on a daily basis. Telemarketers could then sign a user agreement and register with Neustar to access the web site and then download wireless numbers for suppression.
- The FCC could allow any telecommunications service provider registered to use Neustar's Number Portability Administration Center (of which there are hundreds) to disclose telephone number switching data to telemarketers for the limited purpose of suppressing calls to cell phones.
- These service providers could set up a process allowing telemarketers to sign a user agreement to directly access the Number Portability Administration Center and obtain the number-switching data.
The FCC has declined stipulate which of these solutions should be adopted and has not indicated when any or all of these potential solutions will be made available to telemarketers. At the same time, it continues to maintain that the means to comply with the cell phone marketing ban are currently available and has ignored the DMA's request to suspend enforcement actions against telemarketers who inadvertently place calls to cell phones using predictive dialers.
What This Means
Telemarketers need to be aware of the impact of local number portability on the ban against placing telemarketing calls to cell phones. While the DMA maintains a Wireless Suppression Service list for its members, this list only contains numbers originally assigned to wireless carriers, it does not include numbers transferred from landlines to cell phones. Telemarketers must take steps to identify these numbers and ensure that they are scrubbed from their calling lists.