• FCC Seeks Comments on Telemarketing and Spam to Mobile Phones
  • March 19, 2004
  • Law Firm: Perkins Coie LLP - Seattle Office
  • On March 11, 2004, the Federal Communications Commission ("FCC") adopted a Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, seeking public comment on its rules governing telemarketing calls and spam to mobile phones, as authorized by the Telephone Consumer Protection Act ("TCPA") and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM"). This is an important rulemaking for any party that seeks to reach customers or users via a wireless network. The FCC seeks comments on the following issues:

    • How should the FCC promulgate its rules governing spam to mobile phones under the CAN-SPAM Act?

    • Should there be a safe harbor for telemarketing calls to mobile phones?

    • Should telemarketers be required to download the national Do Not Call list on a monthly basis, as opposed to quarterly?

    CAN-SPAM Rulemaking

    Section 14 of the CAN-SPAM Act requires the FCC to promulgate rules protecting consumers from unwanted mobile service commercial messages, defined as any "commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service" in connection with such service. The FCC is asking for comments on how to best protect consumers and businesses from the costs, inefficiencies and inconveniences of receiving unwanted electronic mail messages on wireless devices such as mobile phones.

    Among the principal issues the FCC seeks to address include:

    • Whether there should be a list of domain names, or perhaps a standard naming convention, to help senders determine whether or not a message is mobile commercial email.

    • How to provide subscribers with the ability to avoid receiving mobile service commercial messages sent without the subscribers' prior consent, and how to indicate electronically a desire not to receive future mobile service commercial messages from specific senders (opt-out mechanism).

    • Whether commercial cellular providers should be exempted from having to obtain express prior authorization before sending a commercial message to their customers. (Remember, by prior rulemaking, the FCC already exempts wireless carriers from liability under the TCPA for sending SMS to their customers so long as the customer is not charged for the message).

    • How senders can comply with the Act in general, given the unique technical limitations, particularly message length limitations, and the information required to be included in messages by the Act.

    Further TCPA Rulemaking

    The FCC is seeking further comment on its rules governing telemarketing calls to mobile phones under the TCPA. The TCPA prohibits most calls using an autodialer or artificial or prerecorded message "to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged."

    In light of recent changes in local number portability rules, uncertainty has arisen as to how telemarketers can ensure that they do not place autodialed or prerecorded calls to wireless devices using numbers previously assigned to wireline services. Many telemarketers contend that even a ported number database will not allow them to update their call lists instantaneously when consumers port their wireline numbers. As a result, telemarketers may not have a reasonable opportunity to comply with the rules. Accordingly, the FCC seeks comment on the following:

    • Whether the FCC should adopt a limited "safe harbor" provision for calls to telephone numbers that have recently been ported from a wireline telecommunications provider to a wireless telecommunications provider.

    Finally, the recently enacted Consolidated Appropriations Act of 2004 requires the Federal Trade Commission ("FTC") to amend its Telemarketing Sales Rule to require monthly downloads of the national Do Not Call list. Accordingly, on February 10, 2004, the FTC released a Notice of Proposed Rulemaking, proposing to amend the TSR to require monthly downloads of the national list. The FCC now seeks comment on whether its existing rules should be amended as well, in order to achieve consistency with the FTC's rules. Specifically, the FCC seeks comment on:

    • Whether the existing FCC safe harbor provision requiring telemarketers to access the national Do Not Call list on a quarterly basis should be amended to require them to do so every 30 days, consistent with the FTC's proposed rule change.