The "overwhelming response" to a Federal Communications Commission (FCC) petition on the differentiation of marketing research from marketing in the Telephone Consumer Protection Act (TCPA) "further proves" the arguments of the petitioners.

Last year, the Insights Association and the American Association of Public Opinion Research (AAPOR) filed an FCC petition to clarify the difference between marketing research and marketing in the Telephone Consumer Protection Act (TCPA), eliminate unnecessary lawsuits, and reduce the costs and increase the acceptance and use of marketing research. The agency recently called for comments from the public to help consideration of the petition.

243 members of the Insights Association and AAPOR weighed in at the FCC during this period (see the honor roll below).

The Insights Association replied to a submission from trial lawyers Anderson + Wanca that the petitioners said "misrepresents the Petition, and is ultimately unpersuasive." The petitioners particularly rejected the trial lawyers' attempt to disregard a number of relevant court rulings because they "occurred at the pleading stage" and were thus "somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration" by the FCC. To the contrary, the two research trade associations noted that the trial lawyers' arguments are "unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery." In fact, trial lawyers "often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process."

Now that the public comment process is complete, the FCC may rule on the matters raised by the petition at any time. Especially since only one negative comment was registered (and now rebuffed), it is probble that these issues will be resolved as part of the comprehensive TCPA rule rewrite coming soon.

This post includes the honor roll of researchers who submitted comments, then the full Reply Comments from the Insights Association and AAPOR.

Honor Roll: Comments from 243 members of the marketing research and data analytics industry

We owe a great debt to the following members of the Insights Association who filed FCC comments in support of the petition:

  1. J.D. Power /article/fcc-action-needed-curtail-tcpa-trial-lawyer-fishing-expeditions
  2. Carlos Garcia, Garcia Research https://ecfsapi.fcc.gov/file/10620443614100/Garcia%20Research%20-Comments%20to%20Insights%20and%20AAPOR%20Petition%20(6.19.18).pdf
  3. Jordan Peugh, SSRS https://www.fcc.gov/ecfs/filing/106160911026116
  4. Melissa J Herrmann, SSRS https://www.fcc.gov/ecfs/filing/10622404724890
  5. Eran N. Ben-Porath, SSRS https://www.fcc.gov/ecfs/filing/10622779931014
  6. David Dutwin, SSRS https://www.fcc.gov/ecfs/filing/10619630706136
  7. Susan Sherr, SSRS https://www.fcc.gov/ecfs/filing/106223077502168
  8. Deborah Winneberger, SSRS https://www.fcc.gov/ecfs/filing/10621197767948
  9. Robyn Rapoport, SSRS https://www.fcc.gov/ecfs/filing/10620796228771
  10. Jeb Bullis, Voxco https://www.fcc.gov/ecfs/filing/10622384125636
  11. George Brezny, GB Marketing Research Solutions - https://www.fcc.gov/ecfs/filing/1062176629464
  12. Willy Kaplan, California Survey Research Services https://www.fcc.gov/ecfs/filing/1062028339659
  13. Andrew Richardson, Lucidity Research - https://www.fcc.gov/ecfs/filing/10621714414038
  14. Julie A. Davis, Xcel Energy -  https://www.fcc.gov/ecfs/filing/10621072425703
  15. David Lustig, Optimum Solutions Corporation/OSC World https://www.fcc.gov/ecfs/filing/10620028629788
  16. Crystal MacAllum, Westat https://www.fcc.gov/ecfs/filing/10620910615131
  17. Shawn Herbig, IQS Research https://www.fcc.gov/ecfs/filing/1062152490695
  18. Alan Appelbaum, Market Probe International https://www.fcc.gov/ecfs/filing/10620394621454
  19. Michael Halberstam, ISA https://www.fcc.gov/ecfs/filing/10620139633001
  20. Mark Rosenkranz, Pacific Market Research https://www.fcc.gov/ecfs/filing/1061539581677
  21. David Stewart, Loyola Marymount University https://www.fcc.gov/ecfs/filing/10616235967838
  22. Jeff George, WBA Research https://www.fcc.gov/ecfs/filing/10618852208159
  23. Lara Pow, SQM https://www.fcc.gov/ecfs/filing/106180064016595
  24. Bob Davis, Davis Research https://www.fcc.gov/ecfs/filing/10618269818414
  25. Joseph Harmon, Harmon Research Group https://www.fcc.gov/ecfs/filing/1061862709493
  26. Valerie Lykes, J.D. Power https://www.fcc.gov/ecfs/filing/1061942307733
  27. Shirley Panek, Confirmit https://www.fcc.gov/ecfs/filing/10620081181098
  28. Kim Dorazio, M. Davis and Company https://www.fcc.gov/ecfs/filing/1062047119881
  29. Eric Jodts, Westat https://www.fcc.gov/ecfs/filing/1062067529378
  30. Gary Langer, Langer Research Associates https://www.fcc.gov/ecfs/filing/106200834903052
  31. Christine Filer, Langer Research Associates https://www.fcc.gov/ecfs/filing/1062268504025
  32. Carol Haney, Qualtrics https://www.fcc.gov/ecfs/filing/106201067100878
  33. Paul Nnanwobu, Random Dynamic Resources https://www.fcc.gov/ecfs/filing/106220064025990
  34. Ruth Bernstein, EMC Research https://www.fcc.gov/ecfs/filing/10622167312734
  35. Jason Eric Saylor, MAXimum Research https://www.fcc.gov/ecfs/filing/1062096722090
  36. Randa Bell, ASDE Survey Sampler https://www.fcc.gov/ecfs/filing/10622079250198
  37. Ricki Jarmon, Abt Associates https://www.fcc.gov/ecfs/filing/10622426818583
  38. Michael Link, Abt Associates https://www.fcc.gov/ecfs/filing/10620071150139
  39. Stephanie Marken, Gallup https://www.fcc.gov/ecfs/filing/106200666023018
  40. Ann Fouts, WSECU https://www.fcc.gov/ecfs/filing/10621897304100
  41. Frances M Barlas, Gfk https://www.fcc.gov/ecfs/filing/1062153650456
  42. Carla Lindemann, Issues & Answers Network https://www.fcc.gov/ecfs/filing/10621969623946
  43. Gregg Kennedy, Issues & Answers Network https://www.fcc.gov/ecfs/filing/10620347501924
  44. James Ratto, Survox https://www.fcc.gov/ecfs/filing/10621224734339
  45. Larry Hooper, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621572715561
  46. William Kirk, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106251367528039
  47. John Hunoval, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106220655819690  
  48. Ricardo Pereira, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062550043120
  49. George Djecki, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106223076102446  
  50. Kristy De Biasio, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062121222544
  51. Rob Cohen, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621208668441
  52. Warren Comunale, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062112204898
  53. John Wackerow, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106221703613092
  54. Eric Hunter, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10622037396736 (not
  55. Amity Menard, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621960110237  
  56. Thomas DeBiasio, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062150740502  
  57. Marc Goulet, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106210582201256  
  58. JoAnn Kirk, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10627999601147
  59. Althea Nicholas-Wood, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10625759811427
  60. Gregg Peterson, University of Michigan Institute for Social Research https://www.fcc.gov/ecfs/filing/10621294186900
  61. Michael Brillantes, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106212363713057
  62. Gerard Holzbaur, Marketing Systems Group https://www.fcc.gov/ecfs/filing/10620227020633
  63. Matt Hancock, Charter Oak Field Services - https://www.fcc.gov/ecfs/filing/1062517874547
  64. Mindy Rhindress, Queens College - https://www.fcc.gov/ecfs/filing/10625160091309
  65. Carol Shea, Olivetree Research - https://www.fcc.gov/ecfs/filing/1062573136200
  66. Patrice Wooldridge, Wooldridge Associates https://www.fcc.gov/ecfs/filing/10625797724388
  67. Susan Saurage-Altenloh, Saurage Research https://www.fcc.gov/ecfs/filing/10627485701734
  68. Jonathan Meyers, J.D. Power https://www.fcc.gov/ecfs/filing/106222490209458
  69. Lance Hoffman, Opinion Access https://www.fcc.gov/ecfs/filing/10622304378925
  70. Andrew Caporaso, Westat https://www.fcc.gov/ecfs/filing/10622438526099
  71. Lee Quintanar, J.D. Power https://www.fcc.gov/ecfs/filing/10622448622075
  72. Seth Brohinsky, Abt Associates https://www.fcc.gov/ecfs/filing/1062257608358
  73. Jordan Klein, Abt Associates https://www.fcc.gov/ecfs/filing/1062266402880
  74. Annie Weber, Gfk https://www.fcc.gov/ecfs/filing/1062269789030
  75. Lynn Stalone, I/H/R https://www.fcc.gov/ecfs/filing/1062272517917
  76. Andrea J Sedlak, Westat https://www.fcc.gov/ecfs/filing/10622869518160
  77. Allen Porter, Survox https://www.fcc.gov/ecfs/filing/1062297817732
  78. Allison De Jong, Langer Research Associates https://www.fcc.gov/ecfs/filing/10623145729753
  79. Angelique Uglow, ReconMR https://www.fcc.gov/ecfs/filing/10623875623603
  80. Nancy Hernon, G3 Translate https://www.fcc.gov/ecfs/filing/106251255920285
  81. Melissa Waetzman, RTi Research https://www.fcc.gov/ecfs/filing/10625207616884
  82. Robert Lederer, RFL Communications https://www.fcc.gov/ecfs/filing/106252900724414
  83. Kim Adams, SNG Research Corporation https://www.fcc.gov/ecfs/filing/10625551516428
  84. Pam Kleese, Homesteaders Life Co. https://www.fcc.gov/ecfs/filing/1062592388208
  85. Jesse Armitage, J.D. Power https://www.fcc.gov/ecfs/filing/106212419311692
  86. Laura Bredenfoerder, BValley Communications and Market Research https://www.fcc.gov/ecfs/filing/106250751421562
  87. Andrew Teblum, Mars Research https://www.fcc.gov/ecfs/filing/1062532911485  
  88. Eric S. Levy, Research Now - SSI https://www.fcc.gov/ecfs/filing/10625559816392
  89. Richard Worick, MSR Group https://www.fcc.gov/ecfs/filing/1062599817472
  90. Connie Dey-Marcos, Credit Union National Association https://www.fcc.gov/ecfs/filing/10625194624027
  91. Terry Lawlor, Confirmit https://www.fcc.gov/ecfs/filing/10625226469238
  92. Michael McGuire, McGuire Research Services https://www.fcc.gov/ecfs/filing/1062573303025
  93. Melissa Skogan, Assa Abloy Door Security https://www.fcc.gov/ecfs/filing/1062657285381
  94. Tara Hutton, Hilton https://www.fcc.gov/ecfs/filing/10626027321207
  95. Brenda Cronin, DentaQuest https://www.fcc.gov/ecfs/filing/10626144627875
  96. Judy Patton, Research Between the Lines https://www.fcc.gov/ecfs/filing/10626168108945
  97. Elizabeth Marie Herceg, National Association of REALTORS® https://www.fcc.gov/ecfs/filing/106263056500509
  98. Brian Jones, Chadwick Martin Bailey https://www.fcc.gov/ecfs/filing/1062687675640
  99. Lynn Welsh, Olson Research Group https://www.fcc.gov/ecfs/filing/1062676904852
  100. Tamara Kenworthy, On Point Strategies https://www.fcc.gov/ecfs/filing/1062779826257
  101. Bob Graff, MarketVision Research https://www.fcc.gov/ecfs/filing/10628059829216
  102. William Friedrich, M3 Global Research https://www.fcc.gov/ecfs/filing/10628166429393
  103. Dave Rothstein, RTi Research https://www.fcc.gov/ecfs/filing/106280940602032
  104. Michael Mermelstein, Nichols Research https://www.fcc.gov/ecfs/filing/1062752986175
  105. Catlin McAteer, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629226728789
  106. Michael Lloyd, Vectren https://www.fcc.gov/ecfs/filing/10629265281468
  107. Marcie Berenson, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629470522668
  108. Glenn Berenson, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629542828441
  109. Wayne Marks, HANSA/GCR https://www.fcc.gov/ecfs/filing/1062989492551
  110. Merrill Shugoll, Shugoll Research https://www.fcc.gov/ecfs/filing/10626188345875
  111. Brian S Lunde, CMI https://www.fcc.gov/ecfs/filing/10629807110617
  112. Karen Phillips, Epsilon https://www.fcc.gov/ecfs/filing/10629288630901
  113. Giovanni Nunez, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629012275141
  114. Martha DeReamer, Matrix Group https://www.fcc.gov/ecfs/filing/10628453927616
  115. Simon Chadwick, Cambiar Consulting https://www.fcc.gov/ecfs/filing/106271187808961
  116. Julie Medalis, Brain Pot Pie https://www.fcc.gov/ecfs/filing/106263085728497
  117. Connie Cuff, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10626196716715
  118. Barbara Babula, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10626077774427
  119. Lynda Manning, Radius Global Market Research https://www.fcc.gov/ecfs/filing/10629807110617
  120. Bill Dalbec, APCO Insight https://www.fcc.gov/ecfs/filing/10702931010952
  121. Bill Denk, MMR Research Associates https://www.fcc.gov/ecfs/filing/1070260820196
  122. Lisa Mancini, Global Data Collection Company https://www.fcc.gov/ecfs/filing/10706194345770
  123. Bob Torongo, GfK Custom Research https://www.fcc.gov/ecfs/filing/10709091299616
  124. Roberta Janasz-Nagle, RTi Research https://www.fcc.gov/ecfs/filing/107091799026857
  125. Ivy Boehm, JP Morgan Chase https://www.fcc.gov/ecfs/filing/10708200806062
  126. Walter Blotkamp, MMR Research Associates https://www.fcc.gov/ecfs/filing/10704046709479
  127. Kevin Jenne, Liberty Mutual Insurance https://www.fcc.gov/ecfs/filing/107020163619809
  128. Christopher Connolly, the Logit Group https://www.fcc.gov/ecfs/filing/106192191805822

And to the following members of AAPOR who filed comments at the FCC in support of the petition:

  1. mei ding https://www.fcc.gov/ecfs/filing/1062098465961
  2. Heather Morrison https://www.fcc.gov/ecfs/filing/1062012468203
  3. Timothy Triplett https://www.fcc.gov/ecfs/filing/10620130663992
  4. Deborah Beck https://www.fcc.gov/ecfs/filing/10620140623709
  5. Mark A Serafin https://www.fcc.gov/ecfs/filing/10621292517388
  6. Sunghee Lee https://www.fcc.gov/ecfs/filing/10621872108623
  7. Steve Schwarzer https://www.fcc.gov/ecfs/filing/1062176886934
  8. James Cassell https://www.fcc.gov/ecfs/filing/10621538519835
  9. Jennifer Oliver https://www.fcc.gov/ecfs/filing/1062165655080
  10. Terry Lyons https://www.fcc.gov/ecfs/filing/106212265730415
  11. Tim Vercellotti https://www.fcc.gov/ecfs/filing/10621237856642
  12. Donglin Zeng https://www.fcc.gov/ecfs/filing/1062163640008
  13. Michael Binder https://www.fcc.gov/ecfs/filing/1062161578676
  14. Rob Farbman https://www.fcc.gov/ecfs/filing/10621568328404
  15. Stephanie Slate https://www.fcc.gov/ecfs/filing/106212234016139
  16. Randall Brown https://www.fcc.gov/ecfs/filing/106212046708011
  17. Kathleen Call https://www.fcc.gov/ecfs/filing/1062021625377
  18. Elihu Katz https://www.fcc.gov/ecfs/filing/106212687906436 https://www.fcc.gov/ecfs/filing/10621051848519
  19. Michael Traugott https://www.fcc.gov/ecfs/filing/10621504303366
  20. Edward P Freeland https://www.fcc.gov/ecfs/filing/1062143953338
  21. Veronica Jones https://www.fcc.gov/ecfs/filing/10621302809613
  22. Lee M. Miringoff, Barbara L. Carvalho https://www.fcc.gov/ecfs/filing/10621374529761
  23. G. Evans Witt https://www.fcc.gov/ecfs/filing/1062021843304
  24. Trent Buskirk https://www.fcc.gov/ecfs/filing/106221320503271
  25. Ann Arthur https://www.fcc.gov/ecfs/filing/1062296823050
  26. Amy Sue Goodin https://www.fcc.gov/ecfs/filing/10619100883611
  27. Barbara Kerschner https://www.fcc.gov/ecfs/filing/10619738024450
  28. Janice Larson https://www.fcc.gov/ecfs/filing/106200220730690
  29. Stephanie Eckman https://www.fcc.gov/ecfs/filing/106203094300533
  30. Christopher Re https://www.fcc.gov/ecfs/filing/1062033956940
  31. Jamie Ridenhour https://www.fcc.gov/ecfs/filing/10622269224295
  32. Brian Brox https://www.fcc.gov/ecfs/filing/106222132324416
  33. Alan Roshwalb https://www.fcc.gov/ecfs/filing/10620285890118
  34. Chris Anderson https://www.fcc.gov/ecfs/filing/1062052115992
  35. Matt Hubbard https://www.fcc.gov/ecfs/filing/1062028825171
  36. Brian Robertson https://www.fcc.gov/ecfs/filing/106202956906939
  37. Paul Braun,David Oshman,Cynthia Lynn Miller https://www.fcc.gov/ecfs/filing/10620690429423
  38. John Nienstedt, Competitive Edge Research https://www.fcc.gov/ecfs/filing/106200550315585
  39. Goodwin Simon Strategic Research https://www.fcc.gov/ecfs/filing/106222161609148
  40. Harry L. Wilson https://www.fcc.gov/ecfs/filing/1062216296539
  41. Thomas and Dorothy Leavey Center for the Study of Los Angeles https://www.fcc.gov/ecfs/filing/10622092067027
  42. Jeff Bontrager https://www.fcc.gov/ecfs/filing/106220155915396
  43. Lisa Halm-Werner https://www.fcc.gov/ecfs/filing/10620066723353
  44. Liz Hamel https://www.fcc.gov/ecfs/filing/10622047522363
  45. Robert J Stead https://www.fcc.gov/ecfs/filing/106202155929671
  46. Ashley Koning https://www.fcc.gov/ecfs/filing/10622656102300
  47. David Keating https://www.fcc.gov/ecfs/filing/1062297233236
  48. Bistra Anatchkova, Brian Harnisch https://www.fcc.gov/ecfs/filing/10622728210743
  49. Kerryann DiLoreto https://www.fcc.gov/ecfs/filing/1062272071829
  50. John Charles https://www.fcc.gov/ecfs/filing/106222988902158
  51. Ronald E. Langley https://www.fcc.gov/ecfs/filing/106222492303035
  52. Kenneth Winneg https://www.fcc.gov/ecfs/filing/1062255206144
  53. Monika McDermott https://www.fcc.gov/ecfs/filing/10620637019898
  54. Ashley Clark,Lilian Yahng,Jesse Talley https://www.fcc.gov/ecfs/filing/1062252441346
  55. Casey J. Mier https://www.fcc.gov/ecfs/filing/1062060088737
  56. Hugh M. Clark https://www.fcc.gov/ecfs/filing/10620256204711
  57. Frederick S Rose https://www.fcc.gov/ecfs/filing/10619916400160 https://www.fcc.gov/ecfs/filing/10619043749172
  58. Nora Cate Schaeffer https://www.fcc.gov/ecfs/filing/1061909701481
  59. Charles D. Shuttles https://www.fcc.gov/ecfs/filing/10620235607640
  60. Janice Ballou https://www.fcc.gov/ecfs/filing/106190842617662
  61. Julia Tomassilli https://www.fcc.gov/ecfs/filing/10618042429000
  62. Jacob Rubinstein https://www.fcc.gov/ecfs/filing/10619651101865
  63. Peggy Krecker https://www.fcc.gov/ecfs/filing/106211694619758
  64. Bittie Behl-Chadha https://www.fcc.gov/ecfs/filing/106211991217226
  65. Janet streicher https://www.fcc.gov/ecfs/filing/1061926079686
  66. Stanislav Kolenikov https://www.fcc.gov/ecfs/filing/10619295538408
  67. Andrew Defever https://www.fcc.gov/ecfs/filing/1062041446609
  68. Andrew E. Smith https://www.fcc.gov/ecfs/filing/1061855829558
  69. Leah Roberts https://www.fcc.gov/ecfs/filing/10618599820276
  70. Jennifer Dykema https://www.fcc.gov/ecfs/filing/10616396423023
  71. David G. Taylor https://www.fcc.gov/ecfs/filing/10616962323770
  72. Jill Darling https://www.fcc.gov/ecfs/filing/10617992424202
  73. Matthew Stark https://www.fcc.gov/ecfs/filing/1061855865106
  74. Heidi Grunwald,Keisha Miles,David Tucker https://www.fcc.gov/ecfs/filing/10618569924761
  75. Alisha Creel https://www.fcc.gov/ecfs/filing/10618075291724
  76. Craig Helmstetter https://www.fcc.gov/ecfs/filing/10618211417737
  77. Mary Losch https://www.fcc.gov/ecfs/filing/10618787929492
  78. Mark Noyes https://www.fcc.gov/ecfs/filing/1061867161333
  79. Paul J Lavrakas https://www.fcc.gov/ecfs/filing/1061624329111
  80. David Metz https://www.fcc.gov/ecfs/filing/10616139302268
  81. Robert Oldendick https://www.fcc.gov/ecfs/filing/106171889301660
  82. Matthew Boxer https://www.fcc.gov/ecfs/filing/1061782966317
  83. Hank Zucker https://www.fcc.gov/ecfs/filing/106160439114478
  84. Robert P. Daves https://www.fcc.gov/ecfs/filing/10622381409627
  85. G. Donald Ferree, Jr. https://www.fcc.gov/ecfs/filing/10622825426308
  86. Jon Krosnick - https://www.fcc.gov/ecfs/filing/10621937320897
  87. Edward Chervenak https://www.fcc.gov/ecfs/filing/1062139987375
  88. Joshua Starr https://www.fcc.gov/ecfs/filing/1062153933895
  89. Brady T. West https://www.fcc.gov/ecfs/filing/10621040916976
  90. Robert Agans https://www.fcc.gov/ecfs/filing/1062071011989
  91. Colm O'Muircheartaigh https://www.fcc.gov/ecfs/filing/10620642002022
  92. Krista Jenkins https://www.fcc.gov/ecfs/filing/10620159078218
  93. Simmons Research https://www.fcc.gov/ecfs/filing/10620239607833
  94. Jolene D. Smyth https://www.fcc.gov/ecfs/filing/10620236431548
  95. Christopher P. Borick https://www.fcc.gov/ecfs/filing/106201759727791
  96. Xiaolei Pan https://www.fcc.gov/ecfs/filing/1062167976331
  97. Chintan Turakhia https://www.fcc.gov/ecfs/filing/106201015620618
  98. Robert L Santos https://www.fcc.gov/ecfs/filing/1062082142123
  99. Beth Webb https://www.fcc.gov/ecfs/filing/10620730117592
  100. Social and Economic Sciences Research Center (Rose Krebill-Prather) https://www.fcc.gov/ecfs/filing/1062069719029
  101. Mechelle Timmons https://www.fcc.gov/ecfs/filing/1062069097216
  102. Unknown https://www.fcc.gov/ecfs/filing/1061973026887
  103. Patty Meyer, UM ISR https://www.fcc.gov/ecfs/filing/106223064514024
  104. Lisa Straney https://www.fcc.gov/ecfs/filing/1062247353851
  105. Amber Ott https://www.fcc.gov/ecfs/filing/1062255759031
  106. Kristen Conrad https://www.fcc.gov/ecfs/filing/1062292519277
  107. Andy Peytchev https://www.fcc.gov/ecfs/filing/1062297275238
  108. Jody Dougherty https://www.fcc.gov/ecfs/filing/1062320532334
  109. Martha Van Haitsma https://www.fcc.gov/ecfs/filing/10623181117093
  110. Michael Schober https://www.fcc.gov/ecfs/filing/1062329211444
  111. Nancy Belden https://www.fcc.gov/ecfs/filing/10625650530997
  112. stephen gonot https://www.fcc.gov/ecfs/filing/1062509591454
  113. David DesRoches https://www.fcc.gov/ecfs/filing/10625695208193
  114. Patrick Murray https://www.fcc.gov/ecfs/filing/1062747076363
  115. Michelle Jones https://www.fcc.gov/ecfs/filing/1062937786499

Read the full comments in pdf or below:

The Insights Association, Inc. (“Insights Association”) and the American Association for Public Opinion Research (“AAPOR”) (collectively, “Petitioners”) are leading trade associations for the survey, opinion and market research industry. Together, they filed a petition for declaratory ruling (the “Petition”) on October 30, 2017, asking the Commission to clarify four areas under the Telephone Consumer Protection Act (“TCPA”) which directly impact their industry, including that “communications are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations.”[1]

The Consumer & Governmental Affairs Bureau sought comment on the Petition on May 23, 2018. Since that time, at least 235 members from Insights Association and AAPOR have filed comments requesting the Commission adopt the rulings suggested in the Petition.[2]

This overwhelming response further proves the Petition’s argument: Namely, that in spite of decades’ worth of direction from the Commission that survey, opinion, and market research is not telemarketing, the market research industry has come under assault by a predatory plaintiffs’ bar, and urgent action is needed to curb TCPA abuses. Petitioners again reiterate their call for the Commission to adopt the rulings suggested in the Petition.

Among the comments filed since May 23, Petitioners locate only one in opposition to the Petition (the “A+W Comment”).[3] For the following reasons, Petitioners believe the A+W Comment misrepresents the Petition, and is ultimately unpersuasive.

I. THE “ARGUMENT FROM THE PROFIT MOTIVE” HAS BEEN APPLIED TO BOTH SURVEY AND NON-SURVEY COMMUNICATIONS, AND SHOULD BE REPUDIATED, AS A GENERAL MATTER, BY THE COMMISSION

The A+W Comment argues that three cases cited in the Petition—Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc.;[4] Sandusky Wellness Ctr., LLC v. Medco Health Sols.;[5] and Physicians Healthsource, Inc. v. Stryker Sales Corp.[6]—are “radically misconstrue[d]” by Petitioners, because the faxes at issue in these cases did not involve “survey, opinion, and market research studies.”[7] According to A+W, “[a] closer reading of these cases demonstrates that the Insights Petition presents no genuine ‘controversy’ or ‘uncertainty’ for the Commission to resolve.”[8]

Petitioners response to this objection is three-fold. First, the Petition does not, in fact, suggest that the faxes at issue in Boehringer, Stryker Sales, and Medco were surveys. The Petition clearly explains that Boehringer and Stryker Sales involved seminar invitations, and that Medco involved an informational list of medications.[9] These cases were cited to illustrate the “argument from the profit motive,” which has the potential to affect any number of communications, including but not limited to surveys, that have traditionally been exempted from the FCC’s conceptions of “advertising” and “telemarketing” under the TCPA.[10]

Second, the A+W Comment treats the three cases mentioned above as a group, and suggests that, because they did not involve surveys, they are somehow irrelevant to Petitioners concerns. In so doing, A+W glosses over the fact that theses cases are directly at odds with one another. The Boehringer court, in concluding that informational faxes may be advertisements, reasoned that “[b]usinesses are always eager to promote their wares and usually do not fund presentations for no business purpose.[11] Likewise, the Stryker Sales court reasoned that “the information referenced on the fax could have led primary care physicians to refer more patients or discuss orthopedic products more frequently, and this in turn could stimulate demand for Defendants’ products.”[12] Each of these were examples of the “argument from the profit motive” which Petitioners have requested the Commission correct. In contrast, the Medco court explained that “[t]he fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.”[13] This rationale was offered by Petitioners as an alternative route for the Commission to formally endorse. As highlighted in the Petition, the differences between these cases is precisely the kind of “uncertainty” or “controversy” which the Commission can – and should -- clarify.   

Third, the A+W Comment conveniently fails to mention that the Petition’s lead example of the “argument from the profit motive” is Samuel Katz v. American Honda Motor Co., Inc.,[14] a TCPA class action involving customer service surveys. In Katz, the plaintiff argued that the calls were made “with the ultimate purpose of building clientele and repeat customers.”[15] Despite no support for this anywhere in the TCPA or the FCC’s previous guidance, the court bought the plaintiff’s argument, reaching the conclusory determination that “the calls to Plaintiff were advertising because they were made for customer service purposes and to increase future sales and revenue.”[16] As argued in the Petition, the court’s conclusion was in direct contradiction with decades of the Commission’s guidance on market research and surveys, and with the Commission’s guidance on customer service calls in particular.[17] In short, the Petition highlights a number of cases which illustrate the “argument from the profit motive,” some of which involved surveys and some of which did not. The A+W Comment conveniently ignores this fact.

II. MISAPPLICATIONS OF THE COMMISSION’S “PRETEXT” RULES IN THE FAX CONTEXT HAVE BROADER IMPLICATIONS FOR ALL “DUAL-PURPOSE” COMMUNICATIONS

The A+W Comment also contends that Comprehensive Health Care Systems of the Palm Beaches, Inc. v. M3 USA Corporation[18] is irrelevant to Petitioners’ arguments around “dual-purpose” communications because M3 “does not mention the word ‘purpose,’ let alone ‘dual-purpose’ and does not rely on the ‘dual-purpose’ ruling in the 2003 Order in any way.”[19] According to A+W, because the M3 case involved the Commission’s 2006 Junk Fax Order,[20] and specifically the ruling that a fax may be a mere “pretext” to a later advertisement, it does not illustrate a conflict or uncertainty with respect to the Commission’s broader “dual-purpose” framework.

But A+W ignores the fact that the Commission’s “pretext” rules, in the fax context, extend directly from broader questions about the “purpose” of a communication. When the Commission first laid down its “pretext” rule in 2006, it cited to the TCPA’s “telephone solicitation” definition: “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.”[21] In other words, the reason for the Commission’s “pretext” rule is that a “pretextual” fax is in fact a kind of “dual-purpose” communication. The Boehringer court’s analysis is also instructive on this score. After citing the Commission’s Junk Fax Order, the court reasoned as follows: “where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.”[22] More generally, and as discussed below, it is simply incorrect for A+W to suggest that the fax and telephone rules exist in non-overlapping spheres.

III. THE A+W COMMENT ATTEMPTS TO CREATE A FALSE WALL BETWEEN TELEPHONE AND FAX RULES WITH RESPECT TO VICARIOUS LIABILITY AND THE NATURE OF MARKET RESEARCH

In addition to misrepresenting the nature of the “pretext” rule, the A+W Comment attempts to carve out faxes from the purview of the Petition in two other ways. First, A+W notes that the Dish Network decision concerned telephone calls, not fax communications, and that the Commission and courts generally decline to go through a “vicarious liability” analysis at all in the fax context. Of course, insofar as A+W is asserting that market research firms should never be liable in the fax context when communicating on behalf of a corporate client, Petitioners agree. However, Petitioners strongly disagree that the vicarious liability rules as they relate to market research firms, regardless of the mode of communication, do not present any uncertainty or controversy for the Commission to address. In Petitioners’ view, a generalized ruling from the Commission that its vicarious liability rules are specific to telemarketing, and do not apply to survey, opinion, and market research, would bring much-needed clarity to an area where much uncertainty still exists.

Second, A+W echoes its earlier pronouncements that the Petition’s citations to Boehringer, Stryker Sales, and Medco are inapposite to the questions at hand, and argues that these cases present no controversy or uncertainty. Here, Petitioners reiterate their earlier responses: these three cases were presented together with Katz (which was about survey research); these three cases are in conflict with one another; and the “argument from the profit motive” is directly relevant to all “informational” or non-telemarketing communications, including but not limited to surveys. Because courts, as illustrated by the Petition (and as illustrated by the Commission’s repeated need to mark out research from marketing over the years), do in fact struggle to understand the business model of survey, opinion, and market research firms, the fourth issue raised by Petitioners likewise presents an uncertainty or controversy for the Commission. The aim of Petitioner’s fourth requested ruling is simply for the Commission to elaborate on its long-established position on market research. This ruling would have general application to both telephone calls and fax communications.

IV. THE A+W COMMENT CONFLATES LEGAL AND FACTUAL ISSUES, AND IS DISMISSIVE OF THE COSTS OF DISCOVERY

Finally, the A+W Comment seems to argue that, because a number of the court rulings cited by Petitioner occurred at the pleading stage, somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration by the Commission.[23] Petitioners would like to note that this argument from A+W is unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery. This is exactly the problem Petitioners are trying to address, and exactly why 235 Insights Association and AAPOR members have filed comments in support of the Petition. Law firms like A+W often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process.

The fact is the questions presented by the Petitioners are questions of law, not questions of fact, and questions which can (and should) be entertained and addressed by courts at the pleading stage. Additional guidance from the Commission, therefore,  on the four points raised by Petitioners would provide much needed clarity, and will allow courts to better understand how market research is treated under the TCPA, and in so doing restore a measure of efficiency and fairness to TCPA litigation.

 

[1] See Petition at 1 (requesting the following four rulings: “(1) communications are not presumptively “advertisements” or “telemarketing” under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations; (2) the presence in a communication, or some other ancillary document or webpage, of a marginal element that might arguably be considered advertising does not convert the communication into a “dual-purpose” communication; (3) survey, opinion, and market research firms are not subject to the Commission’s vicarious liability regime as articulated in Dish Network; and (4) survey, opinion, and market research studies do not constitute goods or services vis-à-vis the respondent (the participant in a research study), and are not transformed into goods or services merely because they include some nominal inducement to participate”).

[2] See Exhibit A, attached hereto, for a list of members who have commented.

[3] Anderson + Wanca’s Comments on Petition for Declaratory Ruling of Insights Association and AAPOR, CG Docket No. 02-278 (June 22, 2018).

[4] 847 F.3d 92 (2d Cir. 2017).

[5] 788 F.3d 218 (6th Cir. 2015).

[6] 65 F.Supp.3d 482 (W.D. Mich. 2015).

[7] A+W Comment at 2.

[8] Id.; see 47 CFR § 1.2(a) “The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty.”

[9] See Petition at 13 (“In Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., the Second Circuit was asked to consider whether a seminar invitation constituted an advertisement under the TCPA.”); id. at 11 (“Likewise, in Physicians Healthsource, Inc. v. Stryker Sales Corp., a district court in Michigan held in 2015 that a defendant’s seminar invitation could be an advertisement under the TCPA.”); id. at 15 (“In Medco, the defendant sent a fax listing medications available through a particular health plan.”).

[10] See Petition at 1 (requesting a ruling that all “communications,” not just surveys, “are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company”).

[11] 847 F.3d 95-96 (2d Cir. 2017) (emphasis added).

[12] 65 F.Supp.3d at 493 (emphasis added).

[13] 788 F.3d at 225.

[14] Order Re: Defendants’ Joint Motion for Summary Judgment, No. 2:15-cv-04410 (C.D. Cal. May 12, 2017) (“Katz MSJ Denial”).

[15] First Amended Class Action Complaint, Samuel Katz v. American Honda Motor Co., Inc., No. 2:15-cv-04410 (C.D. Cal. Aug 19, 2016) (“Katz Complaint”) (emphasis added).

[16] Katz MSJ Denial at *4 (emphasis added).

[17] See Petition at 10-11 (discussing the Commission’s conclusion that certain kinds of customer service calls may constitute telemarketing, but only if they also incorporate a direct link to marketing or sales efforts).

[18] Order on Defendants’ Motion to Dismiss and Motion to Stay, Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M3 USA Corp., No. 16-cv- 80967, 2017 WL 108029 (S.D. Fla. Jan. 11, 2017).

[19] A+W Comment at 5.

[20] In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, Report and Order and Third Order on Reconsideration, 21 FCC Rcd. 3787 (2006) (“Junk Fax Order”).

[21] Id. at ¶ 54 (“Finally, we conclude that any surveys that serve as a pretext to an advertisement are subject to the TCPA’s facsimile advertising rules.”) (citing 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(10));

[22] 847 F.3d at 95-96; see also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Expedited Declaratory Ruling of M3 USA Corporation, CG Docket No. 02-278 (March 20, 2017).

[23] See A+W Comment at 3 (The Second Circuit reversed the dismissal, ruling that “at the pleading stage, where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.” (emphasis in A+W Comment)); id. at 6 (“The court did not rule that the faxes “were . . . mere ‘pretexts,’” as the Insights Petition incorrectly states; it merely ruled that the plaintiff had adequately alleged a pretext to survive a motion to dismiss and obtain discovery.”).