New rules for telephone research from the Federal Communications Commission (FCC) have dramatically raised the liability risks for telephone survey, opinion and marketing research in the U.S., causing some research companies to go so far in response as to discard most of their dialing equipment. The FCC approved new rules for the Telephone Consumer Protection Act (TCPA) in a Declaratory Ruling and Order on June 18, and released them to the public on July 10 — when the rules immediately went into effect.
The TCPA requires express prior consent to use an automatic telephone dialing system (autodialer) to call a cell phone. More than 60 percent of American households can only or largely be reached by telephone via a cell phone.[1] Dialing “accidents” are not an effective legal defense and penalties run from $500 to $1,500 per violating call. Multiplying these costs exponentially, trial lawyers in recent years have discovered that researchers are a lucrative target for TCPA class action lawsuits, as evidenced in the recent $12 million TCPA settlement agreed to by Gallup.
The FCC’s new rules included numerous provisions curtailing telephone research calls to cell phones, including: (1) Broadening the definition of an autodialer to include almost any dialing equipment short of a rotary phone; (2) Establishing a one-call-before-liability standard for autodialer calls to cell phone numbers that have been reassigned to new users, whether or not the caller learns of that reassignment;[2] (3) Permitting consumers to freely revoke consent to be called; (4) Clarifying that text messages are regulated the same as voice calls and most text-sending platforms or devices are autodialers; and (5) Encouraging the offering of call-blocking technology.
The FCC specifically rejected “arguments that the TCPA’s protections are limited to telemarketing calls to wireless numbers,” even though that was the original target and purpose of the 1991 law. The FCC’s rules do not exempt or exclude research calls as the TCPA’s restrictions apply to all calls regardless of content and purpose.
The Marketing Research Association (MRA) has suggestions for researchers to consider (with their attorney) to address the new TCPA regulations and help minimize their legal liability:
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Only call/text cell phones using an autodialer with the respondent’s express prior consent;
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Manage the risk of using an autodialer to call/text cell phone numbers with the respondent’s express prior consent, because such numbers may have been reassigned to different subscribers for whom express prior consent does not exist;
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Aggressively scrub cell phone numbers for which you do not have express prior consent from your autodialer databases and maintain a do not contact list; and
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Keep impeccable business records.
MRA members can read much more extensive analysis and suggestions for complying with the new FCC Order and some early Q&A.
Commentary
In a July 28 Congressional hearing, FCC Chairman Tom Wheeler was asked if pollsters could go “the way of blacksmiths” thanks to the new TCPA rules. Wheeler replied that, “Well, they have been, right?”
The TCPA was enacted at a time when hardly anyone had a cell phone. Now, with our nation sporting more mobile devices than people, the TCPA must be modernized. MRA is considering all options — regulatory, legislative and judicial — to respond to these new rules and support a positive business environment for legitimate research. We hope you will be a part of it.
-- Howard Fienberg is director of government affairs for MRA, a nonprofit nonpartisan association representing the survey, opinion and marketing research profession.
This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.
[1] 60.3%, combining wireless-only and wireless-mostly households: Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, July to December 2014. National Center for Health Statistics. June 2015. Available online: http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201506.pdf
[2] Any cell phone number may have been reassigned at any moment. According to data cited by Twitter in that company’s comments to the FCC, an estimated 100,000 cell phone numbers get reassigned to new subscribers every day.