The Can-Spam Act, which went into effect on January 1, 2004, requires the Federal Communications Commission to seek comments from the public in connection with promulgating rules protecting consumers from unsolicited commercial e-mail messages sent to wireless devices, including cell phones. On March 11, 2004, the FCC initiated that comment period and also requested comments on two related matters falling under the Telephone Consumer Protection Act (TCPA).
Pursuant to the Can-Spam Act, the FCC requested information from the public on the following topics:
- Methods which could enable senders of unsolicited e-mail to determine whether the messages sent are to a wireless device subscriber;
- Ways in which mobile service subscribers can avoid receiving unsolicited commercial e-mail messages and communicate electronically with senders to ensure that no further solicitations are sent;
- Whether prior consent must be obtained before senders can communicate with recipients; and
- How the senders can comply with the Act, especially in light of the technical limitations.
Telemarketing to wireless devices using autodialers or prerecorded messages is unlawful under the TCPA. However, the recent advent of wireless number portability, i.e., the ability to keep a landline telephone number when switching from landline to cell phone service, has made it extremely difficult for telemarketers to determine whether the number dialed is issued to a landline or a wireless device. As a result, telemarketers are almost certain to run afoul of the law unless the FCC decides to create a safe harbor under circumstances where there is no way to ascertain whether a number represents a cell phone prefix or not. Therefore, the FCC requested comments regarding the following matters:
- Whether the FCC should adopt a limited safe harbor provision for telemarketers who call numbers that have been ported recently from a landline to a wireless number; and
- Whether telemarketers should be required to update do-not-call lists monthly rather than quarterly.
Marketers may want to seriously consider responding to the FCC's request for comments in order to help ensure that the FCC promulgates rules that help facilitate telephone marketing while simultaneously addressing the public's reasonable concerns.