The court appeal of the new Telephone Consumer Protection Act (TCPA) rules from the Federal Communication Commission (FCC) is moving forward, albeit slowly, and the key associations representing survey, opinion and marketing research in the U.S. just sketched out the issues they intend to raise in their intervention in the case.

The main petitioners (Sirius XM, PACE, and ACA International) filed their opening statements of issues last month, after CASRO and MRA intervened. The TCPA rules severely restrict telephone research and invite increased class action lawsuits against researchers, which is why CASRO and MRA responded on behalf of their members.

Other petitioners have also joined the fray -- including Salesforce, ExactTarget, Inc., the U.S. Chamber of Commerce, Vibes Media LLC, the Consumer Bankers Association, Rite Aid, and Portfolio Recovery Associates, LLC -- and, presumably, will be consolidated into the main case at the U.S. Court of Appeals for the DC Circuit. CodeBroker had also petitioned the court, but quickly dropped out of the case.

CASRO/MRA Statement of TCPA Issues in the Case Against the New FCC Rules

 On September 14, CASRO and MRA filed a non-binding Statement of Issues with the court. The following concerns were included, verbatim, in this filing:

  1. Whether the Federal Communications Commission’s (“FCC” or “Commission”) test for capacity under the Telephone Consumer Protection Act (“TCPA”) violates the plain text of the TCPA and conflicts with the First Amendment because its definition of an “autodialer” fails to focus on current capacity at the time a call is placed to generate or dial random or sequential numbers.
  2. Whether the FCC’s Order is arbitrary and capricious under the First Amendment because it sets forth opposing tests for what equipment must be capable of doing in order to qualify as an automatic telephone dialing system. Thus, by extending the TCPA to cover equipment that lacks the present ability to store or produce telephone numbers to be called, the Order subjects increasing numbers of dialing equipment and platforms to a case-by-case determination of whether they are included in the TCPA’s provisions.
  3. Whether the FCC’s interpretation of “called party” to mean “subscriber or customary user” as opposed to “intended recipient” is contrary to the TCPA, conflicts with the First Amendment, and is otherwise arbitrary and capricious.
  4. Whether the FCC’s conclusion that callers are deemed to have “constructive knowledge” of a reassigned phone number after one call – even if the call goes unanswered – violates the TCPA, conflicts with the First Amendment, and is otherwise arbitrary and capricious.
  5. Whether the FCC acted arbitrarily and capriciously and in conflict with the First Amendment by interpreting the TCPA to allow for only one liability-free call to a reassigned number, even though callers will rarely have either actual or constructive knowledge of the reassignment after only one such call.
  6. Whether the FCC violated the TCPA by prohibiting callers from specifying the manner in which consent may be revoked and by forcing callers to accept revocations delivered in ways that do not reasonably inform them of the called party’s preferences.

Anyone interested can read through the statement of issues (accessible here as a pdf), legalese and all.

While we pursue legal, regulatory and legislative measures in response to the new TCPA rules, researchers should continue to focus on risk mitigation in their telephone research as they learn to integrate the new TCPA rules into their current research practices and strategies. We also have answers to some of researchers' questions about the TCPA.

Researchers should continue to communicate their perspectives and concerns (and solutions!) with Abby Devine at CASRO and Howard Fienberg at MRA.

And AAPOR, CASRO, and MRA members can tune into a joint webinar on the TCPA on September 22.

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