April  2004

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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