Is the problem with survey, opinion and marketing research calls to cell phones the amount of calls placed, or the technology used to make the calls?

Jason Rooze submitted comments to the Federal Communications Commission (FCC) yesterday, contending that the agency "really needs to consider 'fair use' of auto-dialers. If the only difference between a auto-dailer and manually calling is the possibility of higher call volume, the[n] the TCPA should regulate CALL VOLUME not the TECHNOLOGY used to make the call."

In other words, Rooze said, the TCPA should focus on "harassment by high call volume/frequency" instead of micromanaging technology. While his comments revolve around the debt collection industry, and he focuses on existing business relationships, Rooze has highlighted an important ongoing problem: the FCC's focus on technology instead of outcomes or behavior.

As all researchers should remember, the U.S. Telephone Consumer Protection Act (TCPA) forbids calling a cell phone using any automated telephone dialing system (autodialer) without prior express consent, including for research purposes.

Years ago, a Marketing Research Association (MRA) member compared the TCPA restrictions "requiring someone to use a buggy whip to drive their car." Government can get bogged down by technology, and left behind by technological and societal changes. The TCPA was drafted back in 1991, when hardly anyone had a cell phone. The Gordon Gecko types who could afford mobile phones at the time had giant bricks and paid inordinate sums for each minute of incoming or outgoing calls.

How times change. According to the latest NCHS data, 57.1% of American households are either wireless-only or wireless-mostly.

As MRA has previously told the FCC, “The existing TCPA rules severely limit researchers’ ability to get unbiased, reliable and accurate data efficiently and cost-effectively representative of all demographics. The rules increase the costs of research (including for small businesses and government), hinder already low response rates, and make it hard to produce representative samples – all to restrict an activity for which there is no evidence of harm.” We also identified the TCPA as a top legal issue facing the research profession in 2014.

Many aspects of the TCPA restrictions are being fought out in court right now and dozens of petitions are awaiting FCC action. More importantly, several large research companies have been hit by class action lawsuits (as have many non-research companies) in the last year.

That is why MRA continues to advocate that survey, opinion and marketing research must be excluded from the TCPA's autodialer-cell phone restrictions.