'Robocallers' pushing for more open access to cell-phone users

11/20/2011

Almost everyone with a landline has felt the annoyance of picking up the phone and realizing that the call coming in is a recorded message delivered by a software robot.

Currently, cell-phone users are protected from these "robocalls" if they haven't consented to receive them, but some industry groups are pushing for a clearer path to making those calls.

Since 1991, federal law has protected cell phones from the reach of two kinds of automated calling equipment.

One blasts out recorded messages to thousands of telephone numbers simultaneously. The other dials many numbers in quick succession, and, if a human answers, signals a customer service representative to come on the line (a telltale moment of dead air signals one of these calls).

Telemarketers cannot make prerecorded calls to either residential landlines or cell phones unless the recipient has provided express consent or has a business relationship with the caller.

For commercial calls that do not involve an explicit sales pitch, the law extends special protection to cell phones: Automated equipment cannot be used unless the recipient has provided consent.

But "consent" is not hard to secure.

Current law assumes that it is given by the act of providing one's phone number, even if it was just for a one-time home delivery or was mentioned in reply to a clerk's spoken question.

This allows automated cell-phone calls that may not be especially welcome, such as a "customer satisfaction" survey administered entirely by robo-software, or robo-messages about an overdue payment.

The Federal Communications Commission has been working on a draft of a stricter rule defining consent. Businesses might be required to secure the customer's consent in writing or from a box clicked online if automatic calling equipment will be used to call the customer's cellphone in the future.

Trade groups including the American Bankers Association and the Association of Credit and Collection Professionals want to prevent the commission from strengthening the consent requirement.

They are backing a bill in the House that they say would clarify issues of consent surrounding automated calls. They try to argue that the protections extended to cell phones in 1991 were necessary only because the per-minute cost of receiving calls was high. Those costs have fallen greatly since then -- so, they argue, treating cell phones differently is no longer necessary.

It's not quite that simple, however. For someone with a flat-rate wireless plan, receiving an unwanted robocall does not incur a cost measured by the minute.

But as more consumers use their phones less for actual calls and opt for prepaid plans, there's a visible cost for every minute of use. Separately, there is the harder-to-calculate cost of having one's personal space invaded by a robocaller that one never wished to summon.

The bill is opposed by the National Association of Consumer Advocates, the Consumer Federation of America, Americans for Financial Reform, Consumer Watchdog, the U.S. Public Interest Research Group and other consumer advocates.

Currently if consumers would like to receive robocalls on their cell phones, they can give their consent, without need of a new law.

Brad Herman, president of Call-Em-All, a company near Dallas, said: "I've seen other companies in the industry say, 'We currently can't send informational calls to cell phones.' I disagree -- we do it every day. The current law is clear."

Mr. Herman says his company, founded in 2005, makes 6 million automated calls a month.

Sallie Mae, the giant lender to college students, faced a class-action lawsuit last year brought by plaintiffs who alleged that from 2005 to 2010 they had received robocalls to their cell-phone numbers without prior express consent.

The lender has offered to settle for $19.5 million; the court has not made a final ruling.