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FCC Proposes Rule on Limiting Calls to Customers Mobiles

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March 31, 2010

FCC Proposes Rule on Limiting Calls to Customers Mobiles

By David Sims, TMCnet Contributing Editor

Recently the Federal Communications Commission published in the Federal Register a proposed rule that would limit the ability of banks, lenders, utilities, debt collectors and others to make calls to their customers’ cell phones.

According to an informative summary on Lexology written by Andrew M. Smith, Julie O’Neill and James McGuire, “these new restrictions would apply to any call to a cell phone, including calls to collect a debt, notify a customer of a payment due, or request additional information to complete an application.”

What’s interesting is that the proposal, if made final, “would undo an FCC (News - Alert) interpretation permitting calls to cell phones where the cell phone number is provided ‘to a creditor, e.g., as part of a credit application,’ and would expose creditors and collectors to private liability and statutory damages under the Telephone Consumer Protection Act.”

That law in question, TCPA, in 47 U.S.C. § 227(b)(1)(A), says it is “unlawful . . . to make any call (other than a call . . . made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.”

This law was passed as a godsend in 1991 to protect any cell phone users who had to pay for incoming calls. “It seems clear that Congress intended the law to apply to random sequential dialers and similar devices that dial numbers continuously until they obtain an answer,” the article’s authors say.

In late 2007, the FCC decided that a creditor had the requisite “prior express consent” to call a consumer’s cell phone using an ATDS, as long as the consumer provided the creditor with the number directly, such as in connection with her application for credit. This most recent rule proposal from the FCC, however, “threatens to undo the compromise reached in 2007,” by giving a new definition of “prior express consent” in the context of using an ATDS to call a cell phone – basically, that it has to be clearly given.

It will be interesting to see what the final regulation is after the industry lobbyists weigh in.

David Sims is a contributing editor for TMCnet. To read more of David’s articles, please visit his columnist page. He also blogs for TMCnet here.

Edited by Kelly McGuire

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