The longstanding law restricting autodialer calls to cell phones seems pretty straightforward. The Telephone Consumer Protection Act (TCPA) says that you need prior express consent, unless it is an emergency. But what is an autodialer really? Is texting the same as a phone call? What constitutes consent? How long does the consent last? Who has that consent and can it be shared with others? Most importantly, if you get the answers wrong, will it cost you millions of dollars from a class action lawsuit?

TCPA violations can yield at least $500 in damages per call, or up to $1,500 per call for knowing or willful violations. The cost of a single violation may not seem that large, but with the number of calls made for marketing research by telephone, the potential damage in a class action lawsuit can add up quickly.

Courts are issuing dueling decisions, trying to interpret the TCPA in the face of ever-mounting litigation. The responsible regulatory authority, the Federal Communications Commission (FCC), recently issued a pair of rulings that must be parsed. However there are more than 20 other petitions awaiting the FCC’s attention. While one of the FCC commissioners wants to address the FCC’s sometimes inconsistent and antiquated approach to the TCPA, the FCC in general does not appear to be in a rush.

Meanwhile, the potential penalties for a researcher who fails to comply with the TCPA, or simply runs afoul of a lawsuit-happy respondent, are on the rise. Case in point: an MRA member got slapped with a class action lawsuit for TCPA violations just last summer. The research company eventually had to settle out of court, even though they did nothing obviously wrong. They were shaken down for tens of thousands of dollars, but decided that was better than the cost in time, money and reputation of fighting the case in court.

And MRA was just alerted to another TCPA class action against yet another MRA member.

According to the U.S. Chamber of Commerce, TCPA litigation has increased by 30 percent in the last year, and businesses are facing a “tsunami” of TCPA class action lawsuits. Bank of America, for instance, ended up settling six class action suits for a total of $32 million last fall. More recently, T-Mobile settled a class action suit for $5 million this spring.

One more headache for researchers: the FCC’s revisions to the TCPA regulations that came into effect in the fall of 2013. The new rules require prior express written consent for autodialer calls to cell phones and automated calls (i.e. prerecorded calls or robocalls), an automated opt-out mechanism, and the elimination of the “established business relationship” exception for calls to residences, if the autodialer or automated calls are conducted for telemarketing or advertising purposes. While thanks to MRA’s efforts the new rules do not require anything different from researchers, MRA members are encountering an increasing number of research clients who are confused and mistakenly presuming that the restrictions apply to research calls.

MRA members can review MRA’s entire analysis, including the following issues.

  1. Two recent FCC declaratory rulings
  2. Limiting the definition of an autodialer
  3. What to do when cell phones change hands
  4. Giving me your phone number means I have prior express consent to call you
  5. Does the First Amendment protect autodialer users from TCPA lawsuits?
  6. How long is express prior consent good for?
  7. FCC Commissioner Michael O'Rielly speaks out about the TCPA
  8. The future for research in a TCPA world