10.3 Do-Not-Call and the Wireless Domain Registry

10.3 Do-Not-Call and the Wireless Domain Registry

Domain II.E performance indicator 2 is a two-registry problem. The National Do-Not-Call Registry is an FTC voice-and-telemarketing program. The Wireless Domain Registry is an FCC list of Internet domains that deliver mail to mobile devices. They protect different channels, use different portals, and impose different consent postures. Treating them as one "do not contact" file is the most common miss on this indicator.

National Do-Not-Call Registry

Congress authorized the National Registry in the Do-Not-Call Implementation Act. The Federal Trade Commission operates it under the Telemarketing Sales Rule; the Federal Communications Commission has parallel do-not-call rules under the TCPA, including a later codification that National Registry protections extend to text messages. Consumers register a home or wireless number for free at donotcall.gov or by calling 1-888-382-1222 from the phone they want listed. Registration no longer expires. It can take up to 31 days to take effect. Registration tells most telemarketers not to call. It is not a shield against every ring: political calls, many charity calls, surveys that do not sell, and companies with a live established business relationship still appear in fact patterns.

Sellers and telemarketers that are not exempt must subscribe and download numbers at telemarketing.donotcall.gov. They pay an area-code-based fee (the Commission publishes a new fee schedule each fiscal year; do not memorize an unpublished dollar figure). They must scrub calling lists against a version of the Registry obtained no more than 31 days before the call. A stale download is not compliance.

Safe harbor, entity-specific lists, and calling hours

The TSR safe harbor is how a company survives an isolated bad call. As a routine business practice the seller or telemarketer must:

1. Establish and implement written procedures to comply with the do-not-call rules.
2. Train personnel, and any entity assisting in compliance, in those procedures.
3. Maintain and record an entity-specific list of numbers that asked this seller or charity not to call.
4. Use a process to prevent calls to numbers on that entity-specific list and to numbers on a National Registry file that is no more than 31 days old.
5. Show that any call that still went through was an error.

Missing procedures, missing training, or a six-month-old Registry file knocks the company out of the harbor. The harbor is not a license to ignore the list.

Entity-specific do-not-call is independent of the National Registry. If a consumer says "do not call this company again," that seller (and telemarketers calling on its behalf) must stop, even if the number is not nationally registered and even if an established business relationship still exists. Entity-specific requests are honored indefinitely, not for 31 days. A company that keeps selling to a customer who said stop has a TSR violation regardless of the national file.

Calling hours are 8:00 a.m. to 9:00 p.m. in the called party's local time. Both the TSR and the FCC's TCPA rules use that window. A West Coast call center that starts dialing East Coast numbers at 6:00 a.m. Pacific has already left the window. Hours apply to covered telemarketing calls whether or not the number is on the Registry.

Exemptions — and their limits

The 18-month clock runs from the last payment, transaction, or shipment, not from account opening. The 3-month inquiry clock runs from the application or question. A consumer who asked for a quote in January is not an EBR target in July. A consumer who bought a sofa last month but said "never call me" is not an EBR target the following week.

Up-to-date delivery notifications, fraud alerts, and similar informational calls are not sales calls, but if they use an autodialer or prerecorded voice to a wireless number they still have to satisfy the TCPA consent rules taught in section 10.2. Do-not-call analysis and TCPA analysis are parallel, not substitutes.

Wireless Domain Registry — a different list

Section 14 of CAN-SPAM directed the FCC to protect consumers from unwanted mobile service commercial messages (MSCMs). The Commission implemented that mandate at 47 C.F.R. § 64.3100 and publishes the Wireless Domain Registry (domain-name downloads on the Commission's consumer site). Wireless providers submit the Internet domain names they use to deliver electronic mail to commercial mobile devices — the classic 10digits@carrier-gateway domains that turn an email into a text on the handset.

A commercial message is presumed to be an MSCM if it is sent to an address that references a domain that has been posted on the FCC list for at least 30 days. No person may initiate an MSCM unless the initiator has the addressee's express prior authorization. That authorization may be oral or written, including electronic methods, and it is an opt-in. That is the opposite of ordinary CAN-SPAM email, which is an opt-out identification statute. After a domain has been posted for 30 days, "I did not know it was wireless" is not a defense unless the sender truly did not knowingly initiate an MSCM and the address did not include a listed domain.

The Wireless Domain Registry is not:

• A list of telephone numbers.
• A substitute for the National Do-Not-Call Registry.
• A list of spammers.
• Permission to send voice telemarketing calls to anyone whose email domain is absent from the list.

Worked scenario A. A solar company downloads the National Registry in January and keeps calling from that file through August. In March a customer who is not on the national list says "stop calling." In July the company dials that customer at 7:30 p.m. local time and also dials a nationally listed number that appeared on the January file. The March request is an entity-specific violation. The August use of a January file is outside the 31-day safe-harbor window. The 7:30 p.m. call is inside hours; hours would have been the issue only before 8:00 a.m. or after 9:00 p.m.

Worked scenario B. The same company buys a "mobile email" list of addresses on carrier gateway domains that have been on the FCC list for months and blasts a commercial offer. There is no express prior authorization. That is a Wireless Domain Registry / § 64.3100 problem, not a National DNC scrub problem. If the company instead places live sales calls to those people's phone numbers, it must use telemarketing.donotcall.gov, not the domain list.

Keep the portals straight on test day: donotcall.gov for consumers, telemarketing.donotcall.gov for sellers, and the FCC wireless domain download for senders of commercial messages into mobile inboxes.