Wireless
Number Portability: The Compliance Conundrum
By Joe Sanscrainte, Call Compliance,
Inc.
If one were to take a look at the teleservices industry today, one
would see a group of companies reeling from the effects of new legislation
enacted at the state and federal levels in 2003. Topping the list of new
compliance issues would of course be the national do-not-call registry,
but not far behind are the regulations governing the use of predictive
dialers, caller I.D. transmission and new billing requirements.
Perhaps lost in all of this confusion is a seemingly minor interpretive
change made by the Federal Communications Commission (FCC). In June of
2003, the FCC adopted sweeping changes to its regulations implementing the
Telephone Consumer Protection Act of 1991 (TCPA). Among many other
changes, the FCC also clarified its definition of the term 'automatic
telephone dialing equipment.' Specifically, the FCC made it clear for
the first time that a predictive dialer 'falls within the meaning and
statutory definition of 'automatic telephone dialing equipment' and
the intent of Congress.' This clarification, coupled with the FCC's
affirmation of its rule that 'under the TCPA, it is unlawful to make any
call using an automatic telephone dialing system . . . to any wireless
telephone number,' will have serious repercussions for any entity that
uses predictive dialers.
The Wireless Universe
Although databases of the majority of wireless number exchanges exist,
there are a number of wireless numbers that are not identified within
these databases (see discussion below). Preventing predictive dialer calls
to wireless number exchanges, in the absence of a complete database of
such numbers, poses a major compliance difficulty for teleservices
professionals.
An additional, and ultimately more complex, problem is presented by
Wireless Number Portability (WNP). Since the start of WNP on November 24,
2003, U.S. consumers have had the ability to 'port' their phone
numbers from one wireless service to another, as well as port numbers
between wireless and wireline services. Although WNP at first glance
appears to be just a beneficial addition to consumer's calling
privileges, it in fact has far-reaching consequences for the teleservices
industry. For each number ported by consumers under WNP, the number of
potentially untrackable wireless numbers increases.
Simply put, the FCC's inclusion of predictive dialers within its
definition of 'automatic telephone dialing systems,' in the context of
WNP and the absence of a complete wireless number database, could quickly
render predictive dialers obsolete. By making the clarification in this
definition, the FCC outlawed any and all calls made to wireless numbers
using predictive dialers. In the absence of a reliable and easily
disseminated database of existing and newly ported wireless numbers,
teleservices companies have no method to effectively and accurately
prevent calls made by predictive dialers to all wireless phone numbers.
There are three distinct sets of wireless numbers that must be tracked
and made available to the teleservices industry to ensure compliance with
the FCC's predictive dialer rules. First, the set of wireless numbers
that can be identified based upon area code and exchange (NPA '
NXX-(X)); second, numbers that cannot be identified based upon NPA '
NXX-(X); and third, all numbers ported by consumers under WNP (from
wireline to wireless, wireless to wireline, and wireless to wireless).
A listing of exchanges and number blocks available exclusively to
wireless devices has been available to the industry for some time.
However, there are a significant number (about 3 million) of wireless
phone numbers that are not accounted for in this listing. These numbers
(referred to as 'Type 1' phone numbers) cannot be tracked by any means
available today. Therefore, even in the absence of WNP, the presence of
Type 1 numbers makes absolute compliance with the FCC's prohibitions (at
least in the absence of specific safe harbors for calls to these numbers)
impossible.
The WNP Problem
The porting of numbers by consumers under WNP poses three other major
concerns for those seeking to track and identify all wireless phone
numbers. First, as consumers port wireless numbers, these numbers will no
longer be reliably identifiable as making use of the wireless area codes
and exchanges. Since consumers can port their wireless number to wireline
service and vice versa, the utility of making use of NPA ' NXX-(X)
information to identify wireless numbers will diminish with each number
ported. In other words, area codes and exchanges formerly set aside for
only wireless numbers will ultimately mean little in an environment where
consumers can freely port numbers back and forth between wireline and
wireless service.
The second problem facing the teleservices industry has to do with the
availability of the WNP information itself. Although certain up-to-date
information on wireless/wireline ported numbers will reside in the WNP
database, only certain entities currently have access to this information
' specifically, telecommunications service providers (TSPs) and law
enforcement officials. Direct access by teleservices professionals is, as
of the time this article went to print, prohibited.
The third problem presented by WNP is the fact that the FCC's
prohibitions are absolute ' any call by a predictive dialer to a
wireless number is a violation. The WNP database, meanwhile, is dynamic
' it is updated in real-time as consumers port numbers. In order for the
teleservices industry to maintain compliance with the FCC's rules, it
will be necessary to make available the WNP database information in a
format or via a service that makes real-time compliance with the dynamic
WNP database possible.
To summarize, prior to November 24, 2003, the majority of the existing
set of wireless numbers could be identified making use of NPA ' NXX-(X)
codes, and the teleservices industry had taken the steps necessary to
avoid making automatic dialer calls to these numbers. The advent of WNP,
however, will undermine the effectiveness of the NPA ' NXX-(X) method of
identifying wireless numbers. Prohibitions over the dissemination of the
WNP data, as well as the dynamic nature of the information itself, pose
additional compliance hurdles for the teleservices industry. In addition,
completely independent of the WNP concerns, there are a large set of Type
1 numbers that will continue to pose compliance issues for the industry.
WNP Compliance Solutions
The purpose of this article is not, of course, to spread panic across the
industry. The fact remains, however, that given the restrictions in place
over the distribution of the WNP database, and the real-time compliance
mandated by the FCC, the industry faces some difficult hurdles when it
comes to staying off the enforcement radar screen on this issue.
The entity that manages the WNP database (Neustar, Inc.), as well as
the entities that are allowed access to it (telephone carriers and
telecommunications service providers), are currently unable to distribute
this information. However, telephone carriers are allowed to make use of
it for call processing and routing purposes. Should Neustar be unable to
have these restrictions eased, the only method to make this information
available for compliance purposes is therefore a screening/blocking
service provisioned to telemarketers by their telephone carriers. Under
this scenario, telephone carriers would process their customers'
outbound telemarketing calls, screening them in real-time against the WNP
database.
Many telephone carriers have licensed such screening/blocking
technology. Such carriers are, at this time, the only entities able to
provide teleservices companies with the real-time WNP compliance mandated
under the FCC rules.
In a time when the teleservices industry is faced with an ever-expanding
universe of laws and regulations, the key for any entity working within
this environment is applying the best technologies and procedures to
assure absolute, 100 percent compliance. The expansion of telemarketing
restrictions has, luckily, been met with a corresponding expansion in the
technologies available to comply with them. The FCC was frank in admitting
that it had no idea how the teleservices industry was going to comply with
its new predictive dialer rules ' instead, the FCC merely stated that it
was confident the industry would develop the necessary means to comply.
Joseph Sanscrainte is director of regulatory affairs and general
counsel with Call Compliance, Inc. Call Compliance, Inc. provides a number
of compliance services to the teleservices industry, as well as an online
telemarketing Regulatory Guide. For more information, please visit www.callcompliance.com.
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