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Express Consent and Cell Phones: FCC Rules

by Joseph Sanscrainte, an attorney with Bryan Cave, LLP, specializing in telemarketing law.

There has been considerable discussion, and confusion, generated by the FCC?s January 2008 ruling regarding autodialed calls in the context of debt collection.To set the record straight -- the FCC rules governing the delivery of calls to "wireless" phone numbers are as follows:

No person or entity may initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 CFR 64.1200(a)(1)

The language used, above, is broad (i.e., it applies to "any telephone call.") Accordingly, the key provision (for entities seeking to make such calls) is the definition of the term "express consent" of the called party.

In its Declaratory Ruling of January 4, 2008 addressing a petition filed by ACA International (the "Debt Collection Ruling"), the FCC specifically ruled that autodialed (and prerecorded) calls to wireless numbers "that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ?prior express consent? of the called party."

In reaching this conclusion, the FCC reviewed its prior pronouncements regarding the autodialer "express consent" provision. Specifically, the FCC found:

"We conclude that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone number subscriber to be contacted at that number regarding the debt. In the 1992 [Telephone Consumer Protection Act] TCPA Order, the [FCC] determined that ?persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.? The legislative history of the TCPA provides support for this interpretation. Specifically, the House report states that: [t]he restriction on calls to emergency lines, pagers and the like does not apply when the called party has provided the telephone number of such a line to the caller for use in normal business communications."

The FCC further noted that the House report on the TCPA found that in such instances, "the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications."

Using the above language from the FCC Debt Collection Ruling, it is clear that where a person "knowingly releases" his/her wireless phone number to an entity, that action in and of itself will constitute the "express consent" sufficient to avoid the FCC?s broad wireless calling prohibitions - as long as the entity uses that number in the course of "normal business communications."

Applying this calculus, the FCC found that debt collection calls made to persons who supplied a wireless number pursuant to the transaction that gave rise to the debt itself are made with the "express consent" of that person. Note that the express consent language has not been extended to instances where the entity making the call has an "established business relationship" with the consumer (i.e., the FCC has not concluded that the mere existence of such a relationship constitutes "express consent.")

Also, further note that the FCC addressed one instance where a number could be captured without the "knowing release" of the consumer ? specifically, "if a caller?s number is ?captured? by a Caller ID or an ANI device without notice to the residential telephone subscriber, the caller cannot be considered to have given invitation or permission to receive autodialer or prerecorded voice message calls."

In other words, the provision of the wireless number must be "active" (knowing) as opposed to merely "passive," and the follow-up call must be in the course of "normal business communications." It is clear that calling a consumer about an existing debt is, according to the FCC, "normal business communications."

Does the FCC?s Debt Collection Ruling, however, give a company carte blanche to call any consumer under any circumstances where the consumer has provided the company his/her cell phone number? Are there any circumstances under which a consumer could part with his/her cell phone number that would not be considered a "knowing release"? Good questions, and ones that must be reviewed on a case-by-case basis, pending any further resolution by the FCC.

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