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DMA Alert for Telephone & E-mail Marketers Marketing Mistakes: Reaching Wireless Devices By Telephone, Text Message, or E-mail

Updated August 2006
The rules for contacting wireless devices are complex and vary depending on the type of communication you send. For instance, the rules for sending a text message to a wireless device are different from those for sending an e-mail or placing a phone call to a wireless device.

Marketers need to be careful when contacting wireless devices because current technology makes it possible to accidentally call wireless devices when you think you are calling landline numbers; or, you can unintentionally send e-mail to wireless devices when you think you are sending to a computer. Since it is illegal (and potentially very costly) to contact a wireless device without prior express permission, all telephone and e-mail marketers need to review this alert which (a) simplifies the rules covering their communications to both consumers AND businesses and (b) explains how to identify wireless numbers and Internet domains of wireless carriers.

This alert is divided into the following sections:
I. Telephone Communications
A. DMA Guidelines
B. Federal Rules
C. How to Obtain Consent to Call a Wireless Device
D. How to Determine Whether You’re Calling a Wireless Number
E. Safe Harbor for Calling Ported Numbers
F. Wireless Numbers and the National Do-Not-Call (DNC) List
G. Penalties for Violating Federal Rules
II. Text Messaging
III. E-mail Communications
A. Mobile Service Commercial Messages (MSCMs)
i. CAN-SPAM Act
ii. Using the FCC’s Wireless Domain List to Comply with CAN-SPAM
iii. The Telephone Consumer Protection Act (TCPA)
B. Messages Forwarded from a Computer to a Wireless Device

I. Telephone Communications
A. DMA Guidelines
DMA’s Guidelines for Ethical Business Practice prohibit marketers from knowingly calling a telephone number for which the called party must pay the charges regardless of whether the call was placed by a live representative or an automated or predictive dialer. This applies to both business-to-consumer (B-to-C) and business-to-business (Bto-B) calls. The only exception is if the consumer provided his/her telephone number to the marketer for the purpose of being called by that marketer.

Review DMA’s guidelines for telephone marketing

B. Federal Law
The Federal Communications Commission’s (FCC’s) Telephone Consumer Protection Act (TCPA) also takes a hard line on calls to wireless devices. The TCPA prohibits marketers from using automatic dialing systems or an artificial or prerecorded voice to make calls to wireless devices (including cell phones, pagers, and any other device for which the called party pays). These calls are prohibited regardless of whether a marketer has an existing business relationship (EBR) with the called party.

The FCC’s rules also apply to:
• Calls to consumer AND business numbers;
• Calls made for ANY purpose, whether or not a solicitation is involved, including sales, transactional, polling, and survey calls; and
• Calls made by for-profit AND nonprofit organizations.

As mentioned, there is NO Existing Business Relationship (EBR) exemption. The only exceptions are when it is an emergency situation or marketers have prior express consent.* Therefore, as a legal matter, a marketer using automated dialing systems, predictive dialers, or artificial or prerecorded voice messages may not call consumers’ or businesses’ cellular or toll-free numbers unless that consumer or business has given that marketer permission to do so.

C)*How to Obtain Prior Express Consent
Unlike other aspects of the TCPA, no specific requirements exist for what kind of consent marketers must obtain to call a wireless device. Nonetheless, the burden of demonstrating consent falls on marketers. Marketers should be able to show that the consumer or business specifically consented to receive calls from the particular marketer at a certain number. Although obtaining written consent is the best option, taped oral consent may be another option.

D) How to Determine Whether You’re Calling a Wireless Device
Sometimes marketers may not know that they are calling wireless devices. Consumers can now “port” their landline numbers to their wireless devices. Thus, a number that is safe to call today, may be illegal to call tomorrow.

So, how can you determine if the phone number you are calling belongs to a landline or a wireless device? The DMA’s subsidiary—Interactive Marketing Services (IMS)—offers 2 services to assist you:

(1) Wireless Block Identifier – identifies more than 400 million phone numbers that are currently, or will be, assigned to cell phones. File is updated monthly.
http://www.ims-dm.com/products/WirelessPortedNumbers.shtmll
(2) Wireless-Ported Numbers File – identifies approx. 400,000 ported numbers. File is updated daily>>  http://www.ims-dm.com/products/WirelessPortedNumbers.shtml

The Wireless Block Identifier does NOT include the numbers on the Wireless Ported Numbers File. These files serve different functions.

E) FCC’s Safe Harbor for Calling Ported Numbers
In the event a marketer calls a number that has been ported to a wireless device, the FCC has set up a 15-day safe harbor. The FCC’s 15-day safe harbor for ported numbers essentially says a marketer will not be held liable for calling a wireless number that has recently been ported if the marketer (1) is placing voice calls, (2) does not knowingly make calls to wireless numbers, and (3) makes the calls within 15 days of the port.

If the FCC opened an investigation into your practices, it likely would not be an adequate defense for you to claim you did not know that you were calling wireless numbers, or that you dialed the wireless numbers by mistake. Although the FCC has established a 15-day safe harbor for calls to ported numbers, you may only call upon this safe harbor as a defense if you can demonstrate that you have been taking the necessary precautions.

F) Wireless Numbers and the National Do-Not-Call (DNC) List
The Federal Trade Commission (FTC) and the FCC allow individuals to register their cell phone numbers on the national Do-Not-Call (“DNC”) list. Federal DNC rules prohibit calls to telephone subscribers who have placed their numbers on that list. Thus, marketers should ensure that they comply with all relevant DNC rules when placing solicitation calls to wireless numbers.

G) Penalties for Violating the FCC’s Rules
Penalties for violating the FCC rules can amount to $1500 per violation. Private individuals may file lawsuits, including class actions, to enforce the TCPA.

II. Text Messaging
The FCC treats text messages and short message service (SMS) messages sent to a wireless phone number the same as calls subject to the TCPA and its implementing rules. Such messages include “phone-to-phone” text messaging and SMS messages sent to a two-way pager. Thus, unless you have prior express consent or it is an emergency, it is illegal to use an automatic dialing system to send text or SMS messages to cell phones and other wireless devices.

FCC rules also prohibit sending unwanted text message solicitations to a wireless phone if the wireless phone number is listed on the national DNC registry. DMA’s Guidelines prohibit a marketer from sending text messages to wireless devices.

III. E-mail Communications
A. Mobile Service Commercial Messages (MSCMs)
A “mobile service commercial message” or “MSCM” is an e-mail message sent to an email address on an Internet domain of a wireless carrier. Most wireless carriers maintain an Internet domain name that can be used to send MSCMs to the wireless devices of users on their network.

Like phone calls and text messages to wireless devices, commercial MSCMs or “internetto-phone” messages are restricted under federal law. But MSCMs are governed by rules different from phone calls and text messages, namely the CAN-SPAM Act and TCPA. Marketers need to understand these rules and how to determine whether the e-mail addresses they are contacting belong to wireless devices.

i. The CAN-SPAM Act
One of the rules governing commercial MSCMs is the Federal Trade Commission’s CAN-SPAM Act. The CAN-SPAM Act prohibits sending commercial electronic e-mail messages to wireless devices unless the recipient has provided prior express authorization to receive such messages from the sender. A “commercial electronic email message,” as defined under CAN-SPAM, means any message that has the primary purpose of promoting the commercial availability of goods or services, including content on an Internet web site.

Under Federal Communications Commission rules implementing CAN-SPAM, “express prior authorization” may be obtained orally or in writing. Certain disclosures must be made at the time such consent is obtained. The disclosures must include a statement notifying the subscriber (a) that he or she is agreeing to receive MSCMs sent to their wireless device by a particular sender, (b) that the subscriber may be charged by their wireless service provider for receiving such messages, and (c) that the subscriber may revoke his/her authorization to receive MSCMs at any time. The consent must include the subscriber’s signature, which may be in digital or electronic form as allowed under the federal E-Sign Act and state counterparts, and the email address to which MSCMs may be sent.

Note that even when you have a consumer’s consent to send a MSCM, you must still comply with other CAN-SPAM requirements for sending commercial e-mail messages. To review these other rules, see DMA’s CAN-SPAM flowchart.

ii. Using the FCC’s Wireless Domain List to Comply with CAN-SPAM
The FCC maintains a wireless domain list which contains e-mail addresses that belong only to wireless devices (e.g. cell phones and pagers, as opposed to Blackberry device
that uses a standard domain name). The purpose of this list is to protect consumers from receiving unwanted commercial e-mail on their wireless devices.
The FCC made this wireless domain list available in February 2005 for marketers to help them comply with CAN-SPAM. Marketers may download the FCC’s list online at: http://www.fcc.gov/cgb/policy/DomainNameDownload.html and must scrub their e-mail campaign lists accordingly.

The FCC enforces the rules regarding MSCMs under CAN-SPAM. CAN-SPAM does not allow individuals to sue if they are harmed by CAN-SPAM violations.

iii. The Telephone Consumer Protection Act (TCPA)
MSCMs that are ultimately delivered to a cell phone, pager, or other wireless device might also be considered “calls” under the TCPA and, thus, are also subject to FCC’s TCPA rules restricting calls to wireless devices when the calls are sent using an automated system.

At least one state court has taken the position that an e-mail message converted by a cell phone carrier to a text message is a “call” subject to the TCPA, and the FCC’s rules appear to support this position. Thus, when sending MSCMs using an automated system, marketers should be aware that those messages may be subject to both CAN-SPAM and the TCPA. Marketers should also take note that the TCPA allows private individuals to enforce FCC rules restricting calls to wireless numbers.

B. Messages Forwarded from a Computer to a Wireless Device
E-mail messages that are not sent to an address for a wireless device, but are forwarded to a PDA device like a Blackberry are not subject to FCC rules regarding MSCMs. However, such “commercial” messages would be subject to CAN-SPAM requirements imposed on commercial e-mail messages. To review these other rules, see DMA’s CANSPAM flowchart