Why Doesn't Anyone Call Me?
Has it ever occurred to you why you get so many calls at home from people trying to sell you stuff (or from creditors) but very few, if any, on your mobile phone? This is rooted in a Federal Communications Commission (FCC) rule that prohibits telephone calls (other than calls made for emergency purposes or made with the prior approval of the called party) using an automated dialing system or an artificial / pre-recorded voice to any telephone number assigned to a mobile phone service.
When wired-line phone numbers and wireless phone numbers were completely separate and never intended to be interchangeable, the FCC’s rule seemed both logical and enforceable. However, as soon as the FCC allowed the porting of wired-line phone numbers to wireless carriers, the ability to continue enforcing this rule understandably became more difficult, especially as to the issue of consent.
The Direct Marketing Association (“DMA”) has recently taken up this issue with the FCC by filing comments regarding the FCC’s Telephone Consumer Protection Act passed in 1991 (the “TCPA”). The DMA has requested clarification from the FCC as to whether a marketer or creditor is permitted to place an auto-dialed call or pre-recorded message to a telephone number associated with a wireless service, if that number was originally provided as a contact number associated with a land-line phone. The DMA cited an earlier FCC declaratory ruling in 2008 in which the FCC permitted a creditor to call a debtor on his/her mobile phone, if that debtor previously provided the creditor his/her mobile number. The DMA has made the argument that both situations described above are analogous as they involve the called party previously authorizing calls to a specific number, regardless if that number was previously associated with a wired or wireless service.
According to the DMA, “The Petitioner’s reading of the Commissions’ rule disregards a consumer’s choice and the realities of the marketplace. We believe a business should be permitted to call a consumer at a number designated by the consumer regardless of the underlying telecommunications involved.” The DMA also cited a 1992 FCC TCPA Order in which the FCC stated, “Persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”
Why this matters: From a creditor or marketer’s standpoint, a favorable ruling would open up new opportunities to reach customers/debtors who are continually moving between services. On the other hand, violations of the FCC’s Telephone Consumer Protection Act can be daunting and expensive, as both the FCC and private citizens alike have the right to bring actions against marketers and creditors engaging in prohibited telemarketing practices.
