The Direct Marketing Association filed comments with the Federal Communications Commission regarding Paul D.S. Edwards' Petition for Expedited Clarification and Declaratory Ruling concerning the application of the Telephone Consumer Protection Act.

The comments address how the "porting" of customers' telephone numbers from landlines to mobile affects the ability of marketers to contact those customers with whom they already have a business relationship.

"The DMA is concerned that the Petitioner's interpretation of the Federal Communications Commission's January 2008 Declaratory Ruling does not respect a consumer's choice and ignores a significant shift in the market," the DMA's comments to the FCC say.

The DMA is a global trade association for direct marketers including catalogers, mailers, Internet marketers and telemarketers.

Mr. Edwards on Jan. 12 filed a petition for an expedited clarification and declaratory ruling regarding the FCC's rules under the Telephone Consumer Protection Act on Jan. 12.

In his petition, Mr. Edwards asks the FCC to clarify whether a creditor is allowed to place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to the creditor initially as a contact number associated with landline service.

The FCC's rules prohibits the initiation of "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 or an artificial or prerecorded voice, to any telephone number assigned to mobile phone service.

"Mr. Edwards' petition concerns creditors calling debtors," said Jerry Cerasale, Washington-based senior vice president of government affairs at the DMA. "FCC in a declaratory ruling in 2008 said that when an individual provided a creditor a cell number, that individual had consented to have the creditor call the cell number.

"DMA believes that the relationship established for a landline remains, even it that line is then ported to wireless," he said. "FCC required that phone companies allow the porting of numbers so that individuals shifting from land line to wireless - and eventually vice versa - to take advantage of competition did not have to redo all contact information."

The commission concluded that such 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

"The DMA supports honoring the expressed preference of a customer," the DMA's comments say. "We understand the importance respecting and adhering to the choices of customers has to building trust between marketers and consumers.

"Understanding the value standards and best practices have in building consumer confidence, DMA, working with its members, developed and adopted standards for telephone marketing and making calls, for any purpose, to wireless devices as part of our Guidelines for Ethical Business Practice.

"From our experience, and that of our members, we understand that consumer expectation is a critical element to their relationship with the business community."

The DMA is concerned that Mr. Edwards' interpretation of the TCPA and of the Commission's 2008 Declaratory Ruling unnecessarily upsets this relationship.

According to the DMA, "The Petitioner's reading of the Commission's rule disregards a consumer's choice and the realities of the marketplace. We believe a business should be permitted to call a consumer at a number designated by the consumer regardless of the underlying telecommunications service involved."

The association believes that a consumer's preference to receive calls at a designated number should be honored and preserved when a number is "ported."

The DMA also commented that it should not be assumed that when consumers port their telephone number, they have chosen to negate all their choices concerning that number.

"Instead, a consumer's preference and desire to receive calls at a number designated by the consumer should be preserved when that number is ported," the DMA's comment says. "Such a policy honors a consumer's choice to receive calls, and preserves a consumer's expectation that they will receive calls, at the telephone number provided by the consumer."

As the FCC determined in its 1992 TCPA Order, "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."

"This is important for DMA in the creditor setting -- many DMA members offer credit to customers -- and in the business relationship setting," Mr. Cerasale said. "Those creditors should not be barred from calling those to whom they have given credit because the debtor decided to shift the type of phone service.

"DMA further believes that phone relationships between consumers and businesses established when a customer has a land-line telephone number should remain if that number is ported to a wireless service," he said. "This does not apply if the customer obtained a new wireless service without porting the land line number. In that instance the customer was changing all his/her contact information."