DMA Files Comments with FCC on 'Truth in Caller ID Act'

April 19, 2011 — DMA has filed comments with the FCC, responding to the FCC’s Notice of Proposed Rulemaking (NPRM) implementing the Truth in Caller ID Act of 2009.

The text of the comments appear below:

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April 18, 2011

Ms. Marlene H. Dortch

Secretary

Federal Communications Commission

Room TW-A325

445 12 Street, NW

Washington, DC 20554

Re: WC Docket No. 1 1-39

Dear Secretary Dortch:

The Direct Marketing Association (DMA) appreciates this opportunity to respond to the Federal Communications Commission's (FCC or Commission) Notice of Proposed Rulemaking (NPRM) implementing the Truth in Caller ID Act of 2009. DMA represents over 2,400 companies that either market directly with consumers via all channels of communication or support those marketing companies. Telephone marketing remains an important channel for multichannel marketers.

DMA supported the Truth in Caller ID Act and is pleased that the FCC is establishing rules to avoid the spoofing and abuse of Caller ID technology by unscrupulous individuals and companies. The NPRM focuses on potential harm to consumers from fraudulent use of Caller ID technology. DMA agrees. However, the fraudulent use in many instances harms legitimate marketers. The unscrupulous are unlawfully assuming the identities of well-known, legitimate telemarketers so that consumers will be more likely to answer the telephone. Moreover, they fraudulently avoid providing viable do-not-call options for those consumers which DMA believes significantly reduces consumer trust in telemarketing generally. In essence, those fraudulent companies and individuals are stealing legitimate marketers identity4orporate identity theft.

Corporate identity theft poses a significant problem for legitimate marketers. Consumers become angry at the illegal marketing tactics fraudulently undertaken under the victimized company's name. The brand is then tarnished. Winning back an angry consumer is a difficult and expensive enterprise which is often unsuccessful. Victimized DMA members have difficulty responding to corporate identity theft issues with consumers because they cannot determine who has stolen their identity.

Legitimate marketers whose identities have been hijacked can be a significant resource to the FCC and other law enforcement entities all of whom have limited resources. DMA believes that the FCC should establish rules (probably in conjunction with the Federal Trade Commission) to require Caller ID service providers to be able to trace calls and to reveal the calling party in the case of fraudulent use of Caller ID. One of the parties to whom the information should be provided is the victimized company whose identity was stolen. Such a rule would significantly increase the resources available to locate and penalize the fraudulent individuals since victims of corporate identity theft have a significant incentive to stop the fraud.

Moreover, DMA also has been receiving an increased number of consumer complaints alleging that telemarketers are calling their home with a truncated Caller ID, no Caller ID or a non working number displayed, and if the consumer answers the phone, the caller refuses to state who was calling. The consumers are very angry because they cannot inform law enforcement or self-regulatory programs who is the culprit. FCC should look to assist both victimized marketers and consumers by requiring the providers of the voice service to disclose who made the call.

Another area where the Commission could assist victimized companies is the complaint data housed by the Federal Trade Commission. If victimized companies had limited access to the complaint database, those companies could have earlier warning of potential corporate identity theft and be prepared better to respond to complaining consumers. The Commission should work with the FTC to open the FTC database to victimized

companies. Their efforts to find the thieves would begin sooner as well.

Proposed Rule

General Comment

DMA believes the proposed rule is well crafted. In particular, we are pleased that the rule applies to an entity causing a fraudulent or misleading transmission or display of a Caller ID. Under the proposed rule a telemarketer who transmits a proper Caller ID that happens to become incorrect during transmission or display has not violated the rule.

DMA strongly agrees with that principle. We also believe that the rule should apply to any fraudulent application of the *69 service which some consumers utilize to return a call. We want to point out to the Commission two specific instances where DMA members have found problems concerning the correct display of Caller ID and *69 services. When consumers use the "69 feature, the number called back may be truncated, and the consumer is not connected to the correct party. Also in some areas of the country toll free number Caller ID displays can also be truncated. These are areas for FCC consumer education to help consumers understand better the current marketplace. In addition, DMA is pleased that the proposed rule allows telemarketers to adjust the Caller ID information transmitted to a number that is answered by representatives who are trained to assist the consumer. Without that flexibility consumers could be faced with calling a trunk line number that would be perpetually busy during normal business hours. That would be harmful to both the consumer and the telemarketer as consumer frustration and anger would build.

Another area that DMA believes the Commission could expand the proposed rule's coverage is to require that the Caller ID information transmitted by a telemarketer be a number that the recipient may call to have her/his phone number be placed on the telemarketer's company specific do-not-call list. This is a requirement in both the DMA's Guidelines for Ethical Marketing and the FTC's Telemarketing Sales Rule. We believe including this requirement in the rule would provide greater protection for consumers and for legitimate telemarketers.

Expansion to VoIP

DMA agrees with the expansion of the rule to cover all voice transmission technologies. The choice of technology should not alter the ethical and legal requirements for telemarketers. If the rule did not cover VoIP or other technologies, it would create an avenue for the unscrupulous to exploit consumers and to undermine any consumer trust in the telephone channel for legitimate marketers.

Spoofing of Caller ID Is Fraud

The Commission requested comments on whether or not the "intent to defraud, cause harm, or wrongfully obtain anything of value" adequately described the prohibited actions intended by the rule. DMA members are concerned with spoofing of their brand names and phone numbers by fraudulent telemarketers-as noted above, corporate identity theft. We believe that the rule covers spoofing of corporate Caller ID since the unscrupulous marketer has taken intentionally another's Caller ID information and caused harm to the victim's brand. Of course, if the Commission added spoofing as a specific violation of the rule, DMA would not object.

Blocking Caller ID

DMA agrees with part 64.1604 (c) of the proposed rule. There are safety and other legitimate reasons to allow callers to block the display of Caller ID information. However, there is no legitimate reason for telemarketers to block their Caller ID information. That prohibition on telemarketers is consistent with DMA ethical guidelines and the FTC's Telemarketing Sales rule. It should remain in the rule.

Incorporating DM's Comments to FTC Rulemaking

As the Commission is aware, the FTC issued an Advance Notice of Proposed Rulemaking concerning Caller ID display. DMA filed Comments with the FTC on January 28,201 1. Those comments are attached and are part of these comments to the Commission.

We thank you for the opportunity to submit these comments and look forward to working with the Commission on these issues.

Please do not hesitate to contact me with any questions at 202-861 -2423 or jcerasale@the-dma.org.

Respectfully submitted,

Jerry Cerasale

Senior Vice President, Government Affairs

Direct Marketing Association

1615 L St, NW, Suite 1100

Washington, DC 20036