FCC Solicits Comments on Proposals to Eliminate Spam From Mobile Phones and Create "Safe Harbor" For Telemarketing Calls to Mobile Phones

Date: Mar 12, 2004

On March 11, 2004, the Federal Communications Commission ("FCC") adopted a Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking ("NPRM") addressing spam and telemarketing calls to wireless devices.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM" or "the Act") directs the FCC, in consultation with the Federal Trade Commission ("FTC"), to promulgate rules to protect consumers from unwanted commercial messages to devices such as mobile phones. Pursuant to the Act, the FCC must devise rules that (1) provide mobile service subscribers an ability to not receive messages absent express prior consent, unless the Commission determines that such a requirement should not apply, (2) afford recipients an opportunity to opt-out of future messages from the sender, and (3) determine how senders must comply with the Act, given the technical limitations associated with mobile devices.

Thus, the NPRM solicits comments on:

    • Determining whether a message is a "mobile commercial e-mail message;"

    • Providing subscribers an ability to avoid receiving e-mail messages sent without prior consent and to indicate their desire to not receive future messages;

    • Exempting commercial cellular providers from a requirement to obtain prior consent before sending an e-mail covered by the Act; and

    • Complying with CAN-SPAM.

Further, the NPRM focuses on a prohibition in the Telephone Consumer Protection Act ("TCPA") on autodialed or prerecorded calls to wireless devices. The TCPA prohibits autodialed or prerecorded message calls 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." According to the FCC, the introduction of "local number portability," which allows consumers to move a phone number from a wireline phone to a wireless phone, may prevent telemarketers from complying with the rules in a timely manner. Thus, the FCC seeks comment on whether it should adopt a "safe harbor" for telemarketing calls to wireless numbers that were recently ported from wireline service.

In a related matter, the FCC also seeks comment on whether it should amend the "safe harbor" provision in its rules, pursuant to which telemarketers must scrub their calling lists against the national do-not-call registry, to provide that telemarketers must do so on a monthly basis, rather than quarterly. Such action would be consistent with a recent proposal by the FTC to amend its Telemarketing Sales Rule to provide that telemarketers must update their lists every thirty days.

Deadlines for submitting comments to the FCC have not yet been set.

For more information, please contact Sheila A. Millar at (202) 434-4143, or by e-mail at millar@khlaw.com, Vanessa R. Hamilton at (202) 434-4111, or by e-mail at hamilton@khlaw.com, or Tracy P. Marshall at (202) 434-4234, or by e-mail at marshall@khlaw.com.