Regarding mobile phones, the FCC will likely apply the current logic used for landlines. That is to say, if a consumer at her sole discretion moved but kept the same mobile number and old area code, and did not notify the caller of the new address, the caller could rely on the old area code to determine applicable curfews (assuming compliance with other rules including but not limited to the TCPA ATDS rules.)
Mobile telephone numbers may soon be the primary means to contact the majority of individuals in the United States.(1) Because such devices can easily cross international boundaries, let alone state lines, businesses calling such numbers must decide how to apply different jurisdictions’ rules such as curfews on calling, disclosures, or registration issues.
As is often the case, the common sense solution is clear, but one FCC opinion gives some guidance, and a further request for opinion would likely be consistent with the prior ruling.
Because area codes are state specific, the common sense solution, of course, is that the caller should be able to rely on the area code of the number called as the location of the owner of that number- so my bank could call me at 9 a.m. central time, even if I happen to be on vacation in Hawaii at the time (I likely would not answer). If the business had conflicting information regarding a customer, e.g. the area code was for one state, but the consumer had provided a different state as her location, the business should use the location provided by the customer.
The FCC’s ruling relevant to this question came in 2005, when it considered a question regarding what rule applied to calls forwarded by the consumer from a landline to a wireless number. As you likely know, there is a very important TCPA restriction applicable to calls to cell phones but not landlines.(2)
The FCC ruled that:
We also agree with the DMA that a call placed to a wireline number that is then forwarded, at the subscriber’s sole discretion and request, to a wireless number or service, does not violate the ban on autodialed and prerecorded message calls to wireless numbers. Action on the part of any residential subscriber to forward certain calls from their wireline device to their wireless telephones does not subject telemarketers to liability under the TCPA.
CG Docket No. 02-278, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Federal Register, Wednesday, April 13, 2005, p. 19336.
The FCC would likely apply this same logic to “forwarding” of the phone itself to a new location- thus, if a consumer at her sole discretion moved but kept the same mobile number and old area code, and did not notify the caller of the new address, the caller could rely on the old area code to determine applicable curfews (assuming compliance with other rules including but not limited to the TCPA ATDS rules.) For questions of state law (e.g. curfews different than the federal standard and disclosures, the calling business likely can rely on the same logic- use the state where records show the consumer resides- with the caveat that states are not bound by the FCC opinion, and sometimes base enforcement not on logic but on the number of complaints received.
It will take awhile for the states’ laws and regulations to catch up to the current level of cell phone use, but this one ruling gives a good indication of how this question will be answered at the federal and state level.
As a final aside, another interesting question would be what criminal laws would apply to calls received in one state but intended for a person thought to be a resident of another. The answer likely would be different than the above TCPA analysis given the more serious nature of criminal laws, but this question is hopefully inapplicable to readers of this article, and I won’t delve into it further.
1. Mobile phone “penetration” in the market is approaching 100%. In May, 2011, CBS news reported that one in four homes has no landline.
2. 47 U.S.C. § 227(b)(1).