On June 10, we filed comments with the Federal Communications Commission (FCC) in advance of a June 18 Commission vote on new rules for the Telephone Consumer Protection Act (TCPA). The TCPA, originally passed in 1991, requires express prior consent to call a cell phone using an autodialer. In its consideration of the new regulations, we asked that the FCC limit its use of the term “robocall,” clarify the definition of an autodialer, and establish a bright line rule regarding reasonable opt-out and a clear standard for notice to callers of wireless number reassignment. Approximately 78 million U.S. households (58.8 percent) today are mostly or only reachable via wireless (cell) phone, the use of which for research purposes is limited by the TCPA as enforced by the FCC, and so of keen interest.

For the first time, MRA has partnered with CASRO to curate and file these requests, speaking with one voice for the research industry. Our goal in this joint effort was to distill and focus our government affairs advocacy to maximize the benefit to our members and the research community at large. We believe this joint approach may have merit for future advocacy efforts. MRA and CASRO will continue to make a forceful case for our industry in all appropriate venues.

The comments are posted below and in pdf here.


Public opinion, social and marketing research is the systematic, objective investigation and analysis of the opinions of a statistically-selected group of people. Research practitioners and research businesses must have the ability to access respondents in order to collect and analyze their opinions and behaviors. Consequently, it is critical for the research industry, even in the absence of governmental mandates, to maintain the public’s trust – people are the lifeblood and most important resource for research.

The national trade associations for the research industry – CASRO, which represents U.S. research businesses, and MRA, which represents U.S. research professionals – join together to request the FCC’s consideration of several key points as it addresses the Proposed Rules in its June 18th meeting. We are asking that the FCC limit use of the term “robocall,” clarify the definition of an autodialer, and establish a bright line rule regarding reasonable opt-out and a clear standard for notice of wireless number reassignment.

The enactment of the TCPA in 1991 dramatically impacted telemarketers’ engagement with consumers, providing a powerful and effective voice for the rights of the consumer.

At the same time, the Congressional sponsors of the TCPA stated that it was strictly focused on the use of the telephone (and associated technology) when such use is designed to encourage or sell products or services.1 The original sponsor of the Senate bill, Senator Fritz Hollings (D-SC), stated that, “This bill is purely targeted at those calls that are the source of the tremendous amount of consumer complaints at the FCC and at the State commissions around the country – the telemarketing calls placed to the home.”2 Likewise, Senator Larry Pressler (R-SD) stated that, “This legislation is the result of a House and Senate conference on comprehensive telemarketing legislation…[p]eople are increasingly upset over this invasion of their privacy by unrestricted telemarketing…[t]he primary purpose of this legislation is to develop the necessary ground rules for cost-effective protection of consumers from unwanted telephone solicitations.”3

The authors of the TCPA recognized, in spirit and language, that there were distinctions among callers and among purposes of calls. Consequently, calls made for legitimate research were not included in the initial TCPA regulations. During rulemaking for the TCPA, the FCC wrote that the law does not apply to “calls conducting research, marketing surveys, political polling or similar activities which do not involve solicitation as defined by our rules."4

Research is not advertising, or sales or fundraising – research is informational, designed to elicit opinions and to better understand public and consumer interests and behaviors. As previously defined above, research is, and should be, regulated distinctly from “commercial speech.”

Yet, the automatic telephone dialing system (“autodialer”) section of the TCPA and, in particular, prohibition of the use of autodialers to call wireless phones, has been unclear and confusing for regulators, covered entities, non-included industries like the research industry, and the public. The lack of clarity and absence of descriptions of acceptable and unacceptable uses of technology have led to many gray areas and unnecessary litigation.

With the wireless phone quickly replacing the landline in many (soon to be, most) areas of the country (estimated to include nearly 78 million households in 20145), CASRO and MRA have developed best practices and guidelines for research companies and practitioners to follow when conducting mobile research. These guidelines reflect our commitment to the interest of the research participants (safety, consent, privacy, transparency) and to maintaining the integrity of research in our mobile world.

We have provided details and recommendations below on several key points as they relate to the Proposed Ruling.

I.          Limit use of the term “robocall”

CASRO/MRA requests that the Commission limit use of the inflammatory term “robocall” strictly to autodialed calls delivering an automated or pre-recorded message. A call initiated by an autodialer that connects a consumer to a live operator is not a “robocall.” Improper use of this term confuses the issue for consumers and wrongfully lumps together two distinct practices.

II.        Clarify the definition of an autodialer

Of utmost importance to the research industry is the clarification of the definition of an autodialer. The current statutory definition is subject to several judicial interpretations which create an uncertain environment for telephone researchers seeking to comply with the law and steer clear of the plaintiffs’ bar. The key areas of uncertainty are (i) whether the actual or the potential capacity of the equipment at the time the call is placed is determinative and (ii) what level of human intervention in call making is sufficient to exclude equipment from being considered an autodialer. On the first point, the Commission is asked to clarify that equipment requiring human intervention (even a single-touch prompt) to call each number is not an autodialer. With respect to the second point, the Commission is asked to clarify that capacity, at the time a call is placed, governs whether equipment is an autodialer for TCPA purposes. Both clarifications requested above would put the varied judicial interpretations to rest while preserving reasonable safeguards to prevent wanton and unwanted automated calling.

CASRO/MRA believe that by defining an autodialer as equipment that can, at the time of the call, both (i) store or generate sequential or random telephone numbers and (ii) dial individual numbers without human intervention, captures the true statutory meaning while clarifying the gray areas of the definition. This definition allows researchers to approach calls to wireless numbers with confidence, while balancing consumer interests in not receiving truly autodialed calls on their wireless numbers without prior express consent.

III.       Establish a bright line rule regarding reasonable opt-out

The Proposed Rules would give consumers the right to revoke their consent to receive autodialed calls to wireless phones in any reasonable way. These rules must include a clear definition of what constitutes reasonable revocation of consent and callers must be provided with adequate time to process such revocations. Establishing such a bright line rule puts callers on notice of what practices are not permitted and makes enforcement easier for the FCC.

IV.       Establish a clear standard for notice of wireless number reassignment

The Proposed Rules require callers, after one call, to stop calling a phone number that has been reassigned to another subscriber. This rule must clearly define the standard for notice of number reassignment. CASRO/MRA proposes that a caller must receive actual notice of number reassignment from the new owner of the telephone number. An unanswered phone call or text message to which the consumer does not respond does not constitute actual notice that a number has been reassigned. Wireless numbers, especially those assigned to prepaid plans, change subscribership frequently, making it more challenging to ensure that the person being called is the intended respondent. If a clear, practical definition of notice is not established, this will become a nightmare for callers and consumers alike.

We support the Commission’s efforts to redress these issues. The TCPA was enacted at a time when hardly anyone had a wireless phone. Today, the U.S. has more mobile devices than people, and nearly two-thirds of the population can only be reached via wireless phone.

We hope that the Chairman and the Commissioners give due and balanced consideration: (a) to the interests of personal privacy; (b) to the interests of consumers of products and services; (c) to the ability of the public to express their opinions, beliefs, and concerns; and (d) to the need for businesses to hear from and engage with customers, potential customers, and the public.

Sincerely,

Diane K. Bowers, President
Council of American Survey Research Organizations
170 North Country Road, Suite 4
Port Jefferson, NY 11777
(631) 928-6954

David W. Almy, CEO
Marketing Research Association
1156 15th Street, Suite 302
Washington, DC 20005
(202) 800-2545


1 H.R. Rep. No. 102-317 (1991).

2 137 Congressional Record S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings).

3 137 Congressional Record 518317 (daily ed. Nov. 26, 1991) (statement of Sen. Pressler).

4 FCC 1992 TCPA Order: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd. 8752 (1992).

5 Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, January to June 2014. National Center for Health Statistics. December 2014.