Mitchell N. Roth
mroth@williamsmullen.com

As appeared in e-Connections newsletter, a publication of the American Teleservices Association.

Without a doubt, now that DNC is behind us (at least for the time being), the issue about which I receive the most inquiries is the Federal Communication Commission’s local number portability rule. According to this rule, telephone customers will be able to switch from a landline carrier to a wireless carrier, or vice versa, without changing telephone numbers. In other words, I will be able to make my cell phone number my home number, and/or make my home number my cell phone number.

In theory, it sounds like a wonderful idea. Here is the rub: The FCC’s regulations which implement the Telephone Consumer Protection Act prohibit a person from using a predictive dialer to call a telephone number assigned to a cellular telephone.

Presently, several parties maintain databases of all cellular telephone number prefixes so it is relatively easy for a company engaged in outbound telemarketing to ensure that it is does not dial a telephone number assigned to a cellular telephone number. After November 24, however, all bets are off the table. Area codes and prefixes previously assigned to cellular telephone numbers will ring on landlines and numbers previously assigned to landlines will cause cell phones to play The Overture of 1812 in the dining establishment in which I happen to be.

During the comment period, several in the industry questioned how the industry will be able to ensure compliance. Without a substantive answer of any kind, the FCC basically stated that it is confident that industry will find a solution.

To date, no one in the industry has developed a solution for this problem. This leaves outbound telemarketers with four options: i) do not use predictive dialers; ii) continue to dial numbers with a predictive dialer; iii) prey; or iv) continue to dial numbers with a predictive dialer and prey.

I have a feeling I know which option most of them will choose.