Telemarketers and Cell Phones

You asked whether telemarketers are barred from calling cell phones. You also wanted to learn of recent developments on this issue. Your questions were prompted by an e-mail that asserts that (1) a consortium of wireless telecommunications providers is developing a directory assistance service for cell phone numbers and (2) as a result, cell phone users must sign up with the national “Do Not Call” list by January 1, 2005 to prevent their cell phone numbers being provided to telemarketers.

A consortium of wireless telecommunications providers is developing a directory assistance (411) service for cell phone numbers. The cell phone numbers of customers who chose to participate in this service will be placed in a database. The database administrator states that access to the database will be limited to operator service companies and that it will not produce a publicly available version of the database.

The development of number portability and the cell phone 411 service does not affect federal and state “Do Not Call” laws. The restrictions on telemarketing apply even if a person switches from wireline to cell phone service or lists his cell phone number with the 411 service.

Federal law generally bars telemarketers using automated dialers or a prerecorded or artificial voice to call cell phones. It also imposes several restrictions on telemarketing calls to residential lines, whether wireline or cell phone.

People can also list their cell phone or wireline numbers on the federal and state “Do Not Call” registries. Telemarketers are generally prohibited from calling these numbers. There is no deadline for signing up for the registries. In addition, telemarketers must maintain their own lists of the numbers (cell phone or wireline) of people who have indicated that they do not wish to be called again by the telemarketer, and may not call these people.

Implementation of Federal Communications Commission (FCC) orders has made phone numbers portable. In other words, a person can keep his number if he switches his cell phone carrier and in some cases when he switches from wireline to cell phone service.

FCC regulations (47 CFR Sec. 64.1200) prohibit anyone from using an automated dialer or prerecorded or artificial voice (telemarketers routinely use these technologies) to call any number assigned to cell phone service or any service for which the called party is charged for the incoming call (as is often the case with cell phone service). These restrictions do not apply to calls made for an emergency purpose or when the called party has given his prior express consent.

In addition, the regulations bar anyone from making a call to a residential line of any type using an artificial or prerecorded voice with the prior express consent of the called party. These restrictions do not apply to calls:

1. made for emergency purposes,

2. made for noncommercial purposes,

3. made for commercial purposes that do not include an unsolicited advertisement or a telephone solicitation,

4. made by or on behalf of nonprofit organization, and

5. made by entity with whom the called party has already established a business relationship.

Finally, telemarketing calls cannot be made to residential lines before 8 a.m. or after 9 p.m.

Under the federal regulations, telemarketing calls cannot be made to numbers lines listed in the federal “Do Not Call” registry. The prohibition does not apply to:

1. calls from organizations with which a person has established a business relationship,

2. calls for which he has given prior written consent,

3. calls which are not commercial or do not include unsolicited advertisements; or

4. calls by or on behalf of tax-exempt non-profit organizations.

A person can list both wireline and cell phone numbers on the registry by calling the Federal Trade Commission (FTC) at (888) 382-1222 from the phone number that is to be listed. Alternatively, he can enroll online at http://www.fcc.gov/cgb/donotcall/. Anyone enrolling online must respond to an e-mail sent by the FTC within 72 hours to validate enrollment.

Similarly, Connecticut's “Do Not Call” law prohibits, with certain exemptions, solicitors from making, or causing to be made, unsolicited sales calls to consumers who have enrolled with the state "No Sales Solicitation Calls" list. The prohibition applies to calls to listed cell phone and wireline numbers.

The law exempts calls made or sent (1) with the consumer's prior express written or verbal permission; (2) by a tax-exempt nonprofit organization; (3) in response to a consumer's visit to an establishment with a fixed location that sells, leases, or exchanges consumer goods or services; (4) in response to an express written or verbal request of the person called; (5) primarily in connection with an existing debt or contract that has not been paid or performed; (6) to an existing customer, unless the customer has informed the solicitor that he no longer wishes to receive the solicitor's calls; (7) from a business that began to do business in this state on or after January 1, 2001, that has operated in this state for less than one year; and (8) by telephone companies, compiling their own directories (CGS § 42-288a).

The Department of Consumer Protection encourages consumers to sign up with the national list, which automatically places their numbers on the state list. The department's Website, http://www.ct.gov/dcp/, has links to the national registry and to federal and state complaint forms.

In addition to prohibition on calling numbers on the “Do Not Call” list, the law prohibits:

1. calls to any consumer before 8 a.m. and after 9 p.m.,

2. calls at any time to any consumer who has requested the solicitor not to make any more calls,

3. solicitors from using any device that blocks the caller identification system of the called party, and

4. the use of recorded message devices.

The law also requires people who compile lists of telephone numbers for sale to telemarketers to delete the numbers that are contained on the list.

FCC has adopted orders allowing consumers to keep their telephone numbers when they switch from one wireless carrier to another while staying in the same metropolitan area. The rules also provide for portability from wireline to wireless service in some cases.

To help telemarketers comply with the law restricting calls to cell phones, the Direct Marketing Association (a trade group) maintains a database of landline numbers that have been moved to cell phone service. It also has a database of all of the numbers that were initially assigned to cell phone service.

A consortium of the Cellular Telecommunications and Internet Association and wireless carriers are developing a national wireless 411 service. The company that will administer the database that will support this service (Qsent) believes that the service will go into operation in early 2005. Qsent states only operator services companies will have access to the database and that it is taking steps to prevent others from gaining access to it. It states that it will not produce a physical directory or other publicly available version of the database

Wireless subscribers who choose to participate in the service will be able to do so through their carriers. If a subscriber does nothing, his number will not be included in the 411 database. There will be no charge for consumers to be listed in the database. The cell phone or wireline consumer requesting a number will be charged, with the fee set by the operator service company he uses. There will be no charge for the called party unless he accepts the call. If he does, he will be charged in the same way that he is for other calls. Additional information about the service is available from Qsent's Webpage, www.qsent.com/wireless411.


December 17, 2004		2004-R-0957
TELEMARKETERS AND CELL PHONES

By: Kevin E. McCarthy, Principal Analyst