Survey, opinion and marketing researchers have a number of public policy issues under the rapidly-growing purview of the Federal Communications Commission (FCC). As FCC Commissioner Michael O’Rielly recently said, “these days that can be a very dangerous thing.”

Addressing a conference on April 1, he noted a broad assault on “almost every media platform.” While “potential pitfalls lie ahead for all forms of media as the Commission tries to expand its authority into uncharted territory” with its open internet order (known as net neutrality), “FCC involvement occurs at the speed of regulation, not innovation.”

However, one of his most important points of focus was the Telephone Consumer Protection Act (TCPA), an antiquated 1991 law that requires prior express consent before you can use almost any automation before dialing to someone’s mobile device. The research profession is being buffeted by TCPA lawsuits – especially class actions – just like other areas of the American economy. That is why MRA joined with a bunch of other industries recently to request FCC action on the huge pile of petitions for clarification that the agency has received over the last few years.

O’Reilly admitted that the TCPA is “not on this year’s agenda” at the FCC, but:

FCC decisions and court rulings have broadened the scope of the TCPA, creating uncertainty and litigation risk for legitimate businesses. As a result, businesses have to avoid making calls to their existing customers or clients even if the purpose of the call could directly and immediately help the customer.

For instance, should it be a violation of TCPA – subjecting entities to huge penalties and damages – for a health care provider to contact individuals to provide them with important lab results or post-operative follow-up information intended to prevent hospital readmission? Should we make it harder for a bank to notify consumers of likely fraudulent activity on their credit card? What about if the company is willing to offer ways to mitigate a potential upcoming student loan or mortgage default? These are just some of the issues pending in petitions before the Commission for action and resolution, and there are still more being litigated in courts throughout the country.

Activist groups loudly worry that the regulator will reform the TCPA and unleash an unending slew of robocalls. As O’Reilly remarked, “Nothing could be further from the truth, and I am concerned that catering to this unfounded fear will end up hurting the people they are trying to help.”

Activists “like to make the point” that TCPA compliance is easy: you can just manually dial every phone number, so you should stop complaining about the law. However, including cell phones in a telephone research study sample can cost anywhere from two to five times as much because of that manual dialing. As O’Reilly responded, “That’s just unrealistic.”

With almost 59 percent of homes only reachable by cell phone, the TCPA’s restrictions are killing research by telephone. And that had started BEFORE the recent growth in lawsuits.

O’Reilly emphasized that activists who treat all actors like bad actors are just plain wrong. “We can’t paint all legitimate companies with the brush that every call from a private company is a form of harassment. It is time for the FCC to act to provide clear rules of the road that will benefit everyone, and that means acting on TCPA petitions before us.”

We agree wholeheartedly and hope he can sway his fellow commissioners to do just that. While the FCC waits, the pile of petitions grows, covering concerns about everything from whether or not preview dialing is covered to whether or not your prior express consent to call a cell phone number protects you from accidentally dialing the new owner of that cell phone number.

Unfortunately, O’Reilly closed his speech with a bleak warning: “By the time an issue reaches my desk, you are probably already cooked.”