I get asked questions about cellphone lists all the time. I’d like to set the record straight on telemarketing to cellphone numbers.
The telemarketing sales rule does not outlaw all telemarketing to cellphones.
The Telephone Consumer Protection Act of 1991 (TCPA) forbids calling a cellphone using any automated telephone dialing system (auto-dialer) without prior express consent. This rule applies to all uses of auto-dialers and predictive dialers, including survey and opinion research. This applies to intrastate calls, interstate calls and calls from outside the U.S. Accidental calls are not exempt. Prior express consent, according to the Federal Communications Commission (FCC), may include cases where the respondent has knowingly released his or her phone number to the calling entity as a number at which they wish to be reached, "absent instructions to the contrary." However, if a caller’s number is "captured" by a caller ID or an automated number identification device without notice to the telephone subscriber, "the caller cannot be considered to have given an invitation or permission to receive auto-dialer" calls.
Does this mean that marketers can call cellphone numbers individually, dialing by hand? A few ethical and practical guidelines should be considered:
Ethical guideline #1: Time of day for cellphones
Callers should be mindful that a number registered in North Carolina may currently be travelling in China. The best times of day for calling might not always be the best for a cellphone user.
Ethical guideline #2: Taking care of respondent safety/privacy
Respondents reached on cellphones may be operating a car or other potentially harmful machinery. Many states have already or are looking to ban the use of cellphones without hands-free devices while driving, biking or even walking. Callers may be held liable for inducing respondents to break those laws or the ramifications thereof.
Wireless Do Not Call list
The federal government does not maintain and is not establishing a separate Do Not Call list for wireless phone numbers.
Wireless phone subscribers have always been able to add their personal wireless phone numbers to the national Do Not Call Registry, either online or by calling 888-382-1222 toll-free from the phone number they wish to register. The rules require callers who are not exempt from the rules to stop telemarketing calls 30 days after a number is registered.
There is no deadline for registering a number on the national Do Not Call Registry. Also, according to the FTC, once a number is registered, it will stay on the national Do Not Call Registry until it is either cancelled or the service is discontinued.
Who are we kidding?
Even after registering a cellphone number on the Do Not Call Registry, cellphone owners will probably continue to receive calls from these five categories:
- Companies with which they have had a relationship in the last 18 months. It might have been a purchase or simply requested information. They may legally call for the next year and a half.
- Political parties or organizations seeking votes. And we are definitely going into that time period.
- Organizations taking a survey. These surveys can sometimes quickly turn into a full-blown sales pitch.
- Charitable organizations.
- Scammers operating outside the U.S. who simply do not care that they are breaking the law.
I always caution companies should take the high road, be smart and follow the rules. I would hate to be the one calling someone’s cellphone while they’re driving and being responsible in any way for causing an accident.
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