Back in the 1960s and 1970s, my father worked for “the phone company” as a marketing manager. One of the innovations he supported back then (along with no doubt thousands of other phone company marketers) was what was branded as “Phone Power” in which the phone was promoted as a conduit to customers — a new, quick, easy and efficient channel to generate additional sales. Call people and sell to them over the phone. Genius! Who knew?
Tens of thousands of companies adopted the Phone Power strategy, dialing for dollars by selling stuff to people in the privacy of their homes. Telemarketing came into its own. Millions of sales calls were made. Untold numbers of family dinners were rudely interrupted and sales went up.
By 1991, Congress had received enough complaints about telemarketers and passed the Telephone Consumer Protection Act (TCPA) to put the brakes on Phone Power, imposing restrictions that made it harder for telemarketers to telemarket and reducing “unwanted calls.”
The historical record regarding congressional intent back in 1991 is rather cut and dry. The TCPA was about curtailing telemarketing. There is no mention in the congressional record of curtailing legitimate research calls, but the law made no distinction exempting calls by content. Whether intended or not, the law and its enforcing regulations curtailing telemarketing calls also curtailed research calls.
In the quarter century since, the Federal Communications Commission (FCC) — the agency tasked with enforcing the law — has declined to distinguish between telemarketing and research calls despite several requests that it do so. The law has also been somewhat successful in that the number of telemarketing calls by law-abiding companies has declined as TCPA compliance costs have risen.
One notable exception has been offshore telemarketers and scam artists, who have been skirting the law using caller identification fraud and Internet-based phone systems outside the U.S. to circumvent enforcement efforts. Next time you receive a telemarketing call, particularly one to your cell phone, see if you can determine where it’s from. Chances are, it’s not from here.
As telemarketing calls have declined somewhat, the FCC has shifted its attention to cell phones, which were nascent in 1991. In the FCC's current interpretation of the TCPA, calls to cell phones using autodialers are illegal unless express prior consent exists between the caller and the called. The definition of autodialers is broad, chilling their use, and effectively raising costs again on the caller unless the calls to cell phones are dialed completely manually. Rule breakers are subject to FCC fines or worse.
And there is a worse. Lawbreakers, whether intentional or accidental, are at risk for civil and class action lawsuits where settlements can be claimed in the millions. That motivates trial attorneys to be vigilant defenders of the law's specifics.
Gallup recently paid a $12 million TCPA settlement for such a suit. Others have settled for less substantial but still significant amounts of money.
How can a penalty of this absurd size be commensurate with such a crime? You can’t help but conclude that TCPA class actions are about money for trial attorneys and a growth strategy for their business.
Head on over to the Apple App Store or Google play or www.blockcallsgetcash.com and voilá, there's an app sponsored by a trial attorney for capturing evidence for TCPA lawsuits. Although ostensibly targeted at “telemarketers, debt collectors, and robocallers,” there’s little doubt that the courtesy of an extension can and would be granted to include marketing researchers as deep pocket defendants. The website says that you can:
Control Your Phone!
1. Block Calls.
2. Nail Harassers.
3. Collect Up to $1,500 Per Call.
(4. Laugh all the Way to the Bank.)
The website also claims “10,000 people helped” and “$30 million recovered.”
In part to address this threat to marketing research, together with CASRO, we have joined a lawsuit against the FCC regarding TCPA. Our intent is to secure some relief regarding the too-broad definition of an autodialer, clarity as to what defines human intervention in the dialing process and improved limits on liability for reassigned cell phone numbers all of which create an unnecessary level of risk or burden for researchers. These fixes may make it more difficult to sue legitimate marketing researchers. In the meantime, we’ve published Compliance Considerations for New TCPA Regulations and Telephone Research on MRA’s website and answered some initial questions to help guide you as a researcher to navigate the legal minefield out there.
It may be fashionable in some quarters to blame our parents for the ills of the world, but I can’t really blame my father for this one. That there is at least one app dedicated to help prevent “unwanted calls” highlights the seriousness of this challenge to MR. Best to apply equal or greater diligence so that it cannot be used on you.