The FCC has implemented a strict rule requiring that predictive dialer campaigns to those numbers only be placed with the express consent of the subscriber. Even so, telemarketing calls to cell phones are not illegal under federal law provided the call complies with other applicable laws.
One need walk no further than 100 feet in any airport concourse to find proof that the mobile phone is as common as the wheeled suitcase for all types of travelers. Similarly, not only has the mobile phone been embraced by millions of people in the United States and abroad, some subscribers are replacing their residential telephone lines completely, using their mobile number as their only means of residential telephone contact.
My wife and relatives recently asked me about an email circulating regarding telemarketing calls to cell phones and the national “do-not-call” list. There were actually two different rumors:
A directory of cell phone numbers will soon be published for all consumers to have access to. This will open the doors for solicitors to call you on your cell phones, using up the precious minutes that we pay lots of money for. The Federal Trade Commission has set up a “do not call” list. It is called a cell phone registry. To be included on the “do not call” list, you must call from the number you wish to register…
and
Starting Jan 1, 2005 , all cell phone numbers will be made public to telemarketing firms. So this means as of Jan 1, your cell phone may start ringing off the hook with telemarketers, but unlike your home phone, most plans pay for your incoming calls. These telemarketers will eat up your free minutes and end up costing money. According to the National Do Not Call List, you have until Dec 15, 2004 to get on the national “Do Not Call List” for cell phones*.
Although each rumor contains a grain of truth, the conclusions and most facts in both rumors are false. This column will describe the laws applicable to calls to cell phones so that your business can comply with applicable law (with the aid of your legal counsel).
The first rumor about cell phone numbers potentially becoming available for directory assistance is true, but it is false that solicitors can call those numbers unless the consumer registers them on the national “do-not-call” list. It is also false that the FTC has created a “cell phone registry” for this purpose.
A business cannot call a mobile telephone number, or any number for which the consumer is charged for the call, using a predictive dialer without express consent from the consumer. This Rule is part of the Telephone Consumer Protection Act, administered by the FCC. “Express consent” requires a specific opt-in by the consumer for that telephone number (i.e. a business could not append, or otherwise research, e.g. in a cell number directory, the cell number of its customers and legally call them using a dialer.) The FCC has ruled that a consumer who provides his or her telephone number to a business has expressly consented to calls to that number, absent instructions to the contrary.
So, if a consumer lists a cell number on an application as his or her contact number, the FCC has ruled that the consumer has expressly consented to calls to that number, absent some other “do-not-call” request. A cell number directory assistance service, however, will not open the doors to waves of telemarketing calls to those numbers, because any resulting “waves” would crash on the shore of FCC legal action under the TCPA for illegal calls (with a potential penalty of $500-$1500 per phone call). Simply making a cell number available in directory assistance is not “express consent” to call that number.
Nor is an established business relationship between a business and a consumer “express consent”. Express consent requires more than a purchase, or inquiry about a business’s services, under both the FCC and FTC rules.
The second rumor is more of the same. The FTC does allow consumers to add their telephone numbers to the national “do-not-call” list, but cold calls to those numbers are illegal based on the FCC’s rules. There is no deadline to add cell or residential numbers to the “do-not-call” list. Nor does whether a number is “public” or not affect whether calls to it are legal under federal law.
The FCC’s rule against calling mobile numbers using a predictive dialer and its “porting” rules (effective May 24, 2004 ) have resulted in another list which businesses must access to ensure their calls are legal. Because the porting rule means that any number can be a cell phone or a land line (because the numbers are interchangeable), any business using a predictive dialer for a calling campaign must ensure that calls are not placed to cell numbers. This is true even for calls to that business’s own customers (exempt from the national “do-not-call” list). The FCC has created a number portability database administered by a third party which a caller must access at least every 15 days to “scrub” numbers which have been ported from land lines to mobile lines from its calling files (absent express consent to call those cell numbers).
All other telemarketing laws that apply to residential calls also generally apply to calls to cell phones. These laws prohibit caller ID blocking, fraud, deception etc.
In conclusion, telemarketing calls to cell phones are not illegal under federal law. A telemarketer can “hand dial” those numbers so long as the call complies with other applicable law such as the Telemarketing Sales Rule. The FCC has, however, implemented a strict rule requiring that predictive dialer campaigns to those numbers only be placed with the express consent of the subscriber. These numbers are not likely to “ring off the hook” with telemarketing calls anytime soon.
http://www.snopes.com/politics/business/cell411.asp ( August 9, 2005 )