WASHINGTON-With the onset of local number portability and resulting potential increase in cord cutting, wireless subscribers and their carriers need to be aware that they might experience something they are not used to-telemarketing and spam on their wireless lines. They can rest assured that policy-makers are trying to stop the trend before it gets started.
It has been illegal for nearly a decade to place telemarketing calls to mobile phones, but it became more difficult for telemarketers to comply once the Federal Communications Commission ruled in favor of wireline-to-wireless portability.
“DMA’s current Wireless Suppression Service list will continue to function as it does currently for new numbers that are issued to wireless carriers,” said Jerry Cerasale, senior vice president of the Direct Marking Association, in a letter last month to the FCC. “It will become a very real problem if marketers are unable to identify numbers that are newly ported from wireline to wireless service. In short, our members will not know-and they will have no way of knowing-that they not place autodialed calls to such numbers.”
But the FCC had little sympathy. Repeating what had been the verbal message, K. Dane Snowden, chief of the FCC’s Consumer & Governmental Affairs Bureau, told telemarketers in a letter Nov. 24 that they must make arrangements to obtain mobile-phone numbers because it is illegal to use autodialers to call wireless phones.
“A telemarketer may make appropriate arrangements with a user to obtain the data in a manner that best meets its business needs. Consistent with the approach adopted by the commission to rely on the telemarketing industry to select solutions that best fit telemarketers’ needs, I anticipate that you will review the Nov. 21 letter from NeuStar Inc. and the options it presents to make available the information required to determine that a wireline number has been ported to a wireless service,” said Snowden, noting that NeuStar had sent a letter that better explains the options available to telemarketers to ensure that mobile-phone numbers are not called by autodialers.
One of the options NeuStar offered was a secure Web site that telemarketers could use to find out what wireline numbers had been ported.
FCC Chairman Michael Powell also strongly suggested to mobile-phone customers that if they do not want to receive telemarketing calls that they sign up for the Do-Not-Call list.
Legislative relief from spam, including to wireless devices, moved one step closer last month when the Senate passed the Can Spam Act by voice vote.
“We have all seen the negative impacts of spam and know that the toxic sea of spam threatens to engulf the very medium of e-mail. The passage of the Can Spam Act will help to stem the tide of this digital train wreck,” said Sen. Conrad Burns (R-Mont.), chairman of the Senate communications subcommittee and a sponsor of the bill.
The bill passed by the Senate is slightly different from a version passed by the House by a 392-to-5 vote Nov. 22, so it must go back to the House for final approval. President Bush is expected to sign it. This should all happen before the end of the month, and the bill is expected to be effective Jan. 1.
The bill includes a provision seeking a ban on unsolicited commercial e-mail to mobile phones without prior consent of subscribers.
“What I tried to do with my provision on cell phones was to do today what we were going to be forced to do in two or three years anyway,” said Rep. Edward Markey (D-Mass.).
The Markey amendment advocates an opt-in approach to mobile spam, but still gives the Federal Communications Commission the discretion of setting an opt-out rule. In contrast, e-mail users would be restricted to having to opt out of unwanted electronic advertising.
Some believe that mobile-device users will start getting unwanted messages, as marketers, in the wake of the Do-Not-Call Registry, seek new ways of getting the word out about their products and services.
“As cumbersome and annoying as spam is on your desk. Wireless spam is so much more because you can walk away from your desk but wireless spam follows you wherever you go,” said Markey. “Imagine if you reach a point where there are 150 unwanted rings on your phone-your cell phone. … Congress often acts in areas in ways that people often say how does that impact me? Well, this bill will impact every computer and every cell phone. It will impact every user of a cell phone and how that cell phone is used or to be more explicit the way marketers abuse those phones or computers.”
The Controlling the Assault of Non-Solicited Pornography and Marketing Act is modeled closely after the new Do-Not-Call registry in telemarketing legislation. As such, the Federal Trade Commission and state attorneys general have the authority to enforce new anti-spam guidelines. But unlike the telemarketing legislation, it includes a specific provision authorizing the FTC to create a Do-Not-Spam Registry. Congress was forced to pass special legislation earlier this year when a federal judge said the FTC did not have the authority to create the popular Do-Not-Call Registry. Congress is said to have passed special authorizing legislation faster than in any other non-war-related case.
“I want to say something to all of the federal judges in this country. This legislation specifically authorizes the FTC to implement a Do-Not-Spam Registry. There will be a Do-Not-Spam Registry in our future,” said Rep. Billy Tauzin (R-La.), chairman of the House Commerce Committee. “Very soon a Do-Not-Spam Registry will be available. You will be able to call and have your name added to that registry. We are giving Americans an important tool to stop things they don’t want coming into their home or on their phone or on the e-mail.”
Not everyone is happy about the Can Spam Act since it pre-empts 35 state laws already on the books, including California’s law, which required an opt-in approach to receive commercial e-mail. Citizen lawsuits are also pre-empted.
Burns warned the New York Times that spamming may not stop until spammers know that the law will be enforced. Spammers face up to $6 million in fines and five years in jail unless they send fraudulent e-mails, and then there is no cap on the punishment.
