Number Portability Developing Into a Telemarketing Quagmire

On November 24, 2003 the Federal Communication Commission's ("FCC") number portability rule ("Rule") went into effect in the largest 100 metropolitan statistical areas. The remaining areas will have until May 24, 2004 to comply. In addition to allowing consumers the ability to switch their wireless carrier without losing their current wireless number, local number portability also requires wireline (colloquially, landline) carriers to allow consumers to transfer (i.e., "port") their numbers to wireless carriers. The end result is that a telephone number that was previously a wireline number, may now in fact belong to a wireless number.

This is significant to telemarketing activities, because pursuant to the Telephone Consumer Protection Act of 1991 ("TCPA"), a telemarketer cannot initiate a telephone call using an automatic telephone dialing system (e.g., a predictive dialer) or artificial or prerecorded voice to any wireless number or other number for which the called party is charged for the call, unless the call is made with the prior express consent of the called party. Unlike other TCPA prohibitions, this provision applies to "any telephone call" (other than a call made for emergency purposes) and not merely to calls made for "commercial purposes." Therefore, all calls, even those that might otherwise be exempt from other TCPA restrictions (e.g., research or inquiry calls) are affected. Prior to the implementation of the Rule, there were methods by which a telemarketer could generally determine whether a telephone number belonged to wireline or wireless number based on the fact that certain area codes and number prefixes were specifically assigned to wireless numbers. However, the implementation of the Rule has significantly constrained telemarketers' ability to make these distinctions. Although the FCC specifically referenced the Rule's interaction with the TCPA in its Report and Order implementing the recent TCPA amendments, the FCC placed the burden on telemarketers to "develop business practices" that will allow them to comply with the TCPA requirements after the Rule's implementation, finding that there are "adequate solutions" in the marketplace to enable telemarketers to identify wireless numbers. In fact, the FCC explicitly declined to include a good faith exception for inadvertent autodialed or prerecorded calls to wireless numbers. Various industry groups and individual companies have requested further clarification from the FCC in light of the fact that the data necessary to determine which wireline numbers have been ported to wireless numbers is, to date, unavailable.

Until such clarification is provided, telemarketers who continue to use automatic dialing and/or recorded message equipment run the risk of being assessed fines and/or civil damages. For instance, under the TCPA's private right of action, an individual who receives such a call on their now cellular phone, is entitled to recover actual monetary damages or up to $500 per call and, if the violation is willful, up to $1500. In addition, the TCPA provides for similar recovery for state attorneys general or other state regulatory authorities. Finally, the FCC itself has authority to assess forfeiture penalties against entities that violate the TCPA. Specifically, entities regulated by the FCC as common carriers can be assessed a forfeiture amount $120,000 for each violation.[1]

Until this matter is resolved, entities choosing to make autodialer and/or recorded message calls run the risk of inadvertently calling wireless numbers, in clear violation of the TCPA. What this means is that going forward, those entities using autodialers and/or recorded messages will either need to manually dial all numbers and/or use only live operators, respectively, or obtain the consent of the person being called. In a non-sales context (e.g., calls for research purposes) it may just be easier (and less costly) to obtain the necessary consents in advance, to the extent that there is prior contact with the person being called.

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[1] The FCC recently demonstrated its willingness to impose forfeiture penalties related to TCPA violations. In early November 2003, the FCC imposed a forfeiture penalty of $780,000 against AT&T for TCPA company specific do not call request violations.

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