Marketing Systems Group (MSG), an Insights Association member, recently offered their own comments to the Federal Communications Commission (FCC) on the rewrite of the Telephone Consumer Protection Act (TCPA) rules. (Our member John Couvillon recently did the same.)

"Defining what is not an automatic dialed call will make matters more clear" for marketing research companies, contended MSG in their comments. As they explained the technology:

"An individual initiates a specific call. That phone number is dialed specifically for that individual. Once the phone number has been dialed and receives a result, the individual can request the next phone number to dial and initiate that call. How the phone number is actually ‘dialed’ (machine dialed, voice dialed, or manually hand dialed) does not matter since human intervention initiated the ‘dial’."

MSG also highlighted the word "capacity" as the primary problem with the TCPA regulation:

"Just because the equipment has the capacity to autodial does not mean that the phone number in question was dialed in an automatic fashion. A more specific definition of autodial or automatic dialing for any particular record / phone number would require how the actual record was dialed. That would require record keeping on the equipment and specific documentation of how any number was dialed at any point and time. That specific definition of autodial also brings up another potential issue. If the interviewer is able to initiate the call (but the system physically dials the phone), is that autodial? The interpretation of MSG is no, that is not an autodialed phone number. Autodial should be defined as the dialing system continuously dialing, without human intervention, until a connected call is recognized (this would include predictive dialing and power-dialing with automatic disposition). However, the definition of ‘automatic telephone dialing system’ is finally reached, the word ‘capacity’ needs to be removed as it is too broad a definition for dialing equipment."

In response to the FCC's request for comment on how to handle reassigned cell phone numbers, MSG recommended a couple of rules:

  1. "All sample should be processed through the wireless reassignment database," which will demonstrate "due diligence" and allow for a safe harbor, "where if a number gets reassigned during the calling period the calling party would not be liable since they did try to avoid making the call.
  2. Instead of the existing one-call-before-liability for calls to a number that has been reassigned -- a standard that was rejected by the recent DC Circuit Court decision -- callers shouldn't be liable unless they have "actual knowledge that the number changed hands."

Finally, MSG commented on the status of government contractors as "persons" under the TCPA and their liability for violations: "The definitions in the TCPA should apply to everyone – government, government contractors or commercial companies. In this way there would not be any need for a separate set of standards or rules and it also eliminates any potential loopholes which might abuse automatic dialing to consumers."