The Marketing Research Association (MRA) appealed to the Federal Communications Commission (FCC) on December 23, 2014 to allow marketing researchers the freedom to call mobile phones.
RTI International (an MRA member) had petitioned the FCC to declare that the TCPA restrictions do not apply to "research survey calls made by or on behalf of the federal government." According to the Petition, "RTI asks the Commission to confirm that the TCPA does not restrict research survey calls made by or on behalf of the federal government." RTI contends that the Petition was filed after RTI was "sued for survey calls made on behalf of a number of federal agencies," in which the plaintiffs "alleged that RTI violated" the TCPA’s requirement of "prior express consent" to call a "cellular telephone service" using an "automatic telephone dialing system" (autodialers).
Instead of a narrow exclusion from the TCPA for government research calls to cell phones, MRA has long sought a TCPA exclusion for all survey, opinion and marketing research calls.
According to MRA's submitted comments, the Telephone Consumer Protection Act (TCPA) rules "unnecessarily and perhaps unintentionally limit researchers’ ability to gather unbiased, reliable and accurate public views that cost-effectively represent all demographics. Since the TCPA’s enactment in 1991, the marked increase in households that can only be reached on cell phones – now nearly 60 percent of all households in the United States – has caused researchers to adopt non-autodialer methods to access these households at significant additional costs which benefit no one."
As MRA concluded, "To accelerate the benefits of research for citizens and consumers, the Commission should modernize the TCPA regulatory environment and make autodialers available for genuine survey, opinion and marketing research (not just by or for the federal government) and not subject to the express prior consent requirements of the TCPA when calling a cell phone, consistent with the intent of Congress, in the public interest."
See MRA's comments to the FCC in pdf, and below.
Table of Contents
- Survey, Opinion and Marketing Research
- Research Calls Should Be Excluded from the TCPA Restrictions on Autodialer Calls to Cell Phones
- The original TCPA statute and legislative intent were focused only on telemarketing (i.e., sales calls)
- The TCPA requirement of express prior consent for autodialer calls to cell phones adds to the time and cost of research
- No demonstration of harm in research calls to cell phones
- The TCPA negatively impacts representativeness of research studies by making it harder to reach three fifths of the nation’s households
- The cell phone marketplace has changed dramatically
RTI International (“CI”) has petitioned the Federal Communication Commission (“the Commission”) for a Declaratory Ruling clarifying that the Commission’s Telephone Consumer Protection Act of 1991 (“TCPA”) rules do not apply to “research survey calls made by or on behalf of the federal government.” According to the Petition, “RTI asks the Commission to confirm that the TCPA does not restrict research survey calls made by or on behalf of the federal government.” RTI contends that the Petition was filed after RTI was “sued for survey calls made on behalf of a number of federal agencies,” in which the plaintiffs “alleged that RTI violated” the TCPA’s requirement of “prior express consent” to call a “cellular telephone service” using an “automatic telephone dialing system” (“autodialer”).
The Marketing Research Association (“MRA”), a non-profit national membership association, is the leading and largest association of the survey, opinion and marketing research profession in the United States. MRA promotes, advocates and protects the integrity of the research profession and strives to improve research participation and quality.
For several reasons in the public interest, MRA requests that the Commission exclude all research calls to cell phones from the TCPA requirements for prior express consent using an autodialer.
II. Survey, Opinion and Marketing Research
Survey, opinion and marketing research is the scientific process of gathering, measuring and analyzing public opinion and behavior. On behalf of their clients – including the federal government (the world’s largest purchaser of research), media, political campaigns, educators and commercial and non-profit entities – researchers design studies and collect and analyze opinions and behaviors from a small but statistically-balanced sample of the public to determine their preferences regarding products, services, issues, candidates and other topics.
The scope of the survey, opinion and marketing research profession is nearly infinite, including multi-billion dollar efforts to understand public sentiments and behavior toward food, health care, transportation, media and information technology, just to scratch the surface.
Survey, opinion and marketing research is sharply distinguished from obvious commercial activities like product and service telephone sales, sales lead generation and other efforts that are the subject of the national telemarketing Do-Not-Call (DNC) Registry. In fact, MRA and other research associations expressly prohibit sales or fundraising under the guise of research (referred to as “sugging” and “frugging”) and any attempts to influence or alter the attitudes or behavior of research participants (via overt marketing or biased research design) as a part of the research process.
Genuine survey, opinion and marketing research is dedicated to the accurate assessment of public sentiment, which is a moving target. By successfully defining the true needs of any market, marketing research can be a powerful and valuable voice for citizens and consumers, resulting in successful public policies and candidates, improved product and service quality and innovation, economic development and job creation, and a higher quality of life.
III. Research Calls Should Be Excluded from the TCPA Restrictions on Autodialer Calls to Cell Phones
MRA urges the Commission to rule that genuine survey, opinion and marketing research calls be excluded from the TCPA restrictions on autodialer calls to cell phones provided that cell phone users may opt out of participating. Congress empowered the Commission with the authority to make such necessary exclusions.
Existing TCPA rules unnecessarily and perhaps unintentionally limit researchers’ ability to gather unbiased, reliable and accurate public views that cost-effectively represent all demographics. Since the TCPA’s enactment in 1991, the marked increase in households that can only be reached on cell phones – now nearly 60 percent of all households in the United States – has caused researchers to adopt non-autodialer methods to access these households at significant additional costs which benefit no one.
In this context, the rules increase the costs of research, hinder already low response rates, and make it harder to produce representative samples and quality data – all to restrict an activity for which there is no evidence of real harm. The rules were written in a different era when hardly anyone had a cell phone and those who did paid inordinate sums for each minute of incoming or outgoing calls. Times have changed and the Commission should now modernize the rules to today’s reality in order to further the social and economic benefits of survey, opinion and marketing research.
A. The original TCPA statute and legislative intent were focused only on telemarketing (i.e., sales calls)
The Congressional sponsors of the TCPA stated that it was focused on the use of the telephone (and associated technology) when such use is designed to encourage or sell products or services.
The initial sponsor of the Senate bill, Senator Fritz Hollings (D-SC), stated that, “This bill is purely targeted at those calls that are the source of the tremendous amount of consumer complaints at the FCC and at the State commissions around the country – the telemarketing calls placed to the home.”
Likewise, Senator Larry Pressler (R-SD) stated that, “This legislation is the result of a House and Senate conference on comprehensive telemarketing legislation… [p]eople are increasingly upset over this invasion of their privacy by unrestricted telemarketing… [t]he primary purpose of this legislation is to develop the necessary ground rules for cost-effective protection of consumers from unwanted telephone solicitations.”
In contravention of that legislative intent, the Commission interpreted the TCPA to include calls made by anyone for any purpose if using almost any automation, instead of targeting the specific identified problem (abusive telemarketing uses of predictive dialers).
Unfortunately, the Commission’s interpretations created an unnecessarily expansive and confusing regulatory landscape for conducting survey, opinion and marketing research in the United States. In order to protect our members, MRA has had to consistently recommend that the research profession avoid essentially any automation in research calls to cell phones and rely instead on expensive and inexact manual dialing by hand.
B. The TCPA requirement of express prior consent for autodialer calls to cell phones adds to the time and cost of research
Survey, opinion and marketing researchers already encounter significant public apathy with respect to research participation. Research response rates have been falling for the last couple of decades, driving up the cost of and time involved in achieving the required number and strata of participants to reach representative samples for high quality research studies.
The TCPA requirement for express prior consent to use an autodialer to call a cell phone has thus helped to increase non-response bias and adversely impacted the accuracy of research results.
Researchers have estimated to MRA that including cell phone users in their study samples increases the cost of a research study by two to four times that of an ordinary telephone study. Autodialers reduce both the time it takes to dial a number manually (a significant cost) and the chance of calling a wrong number. Automatic dialing also synchronizes better with the industry standard “computer-assisted telephone interviewing” (CATI) software that helps researchers execute and conduct calls with fewer errors and greater efficiency. Errors can corrupt a research study’s data while wasting the time of the researcher, the client waiting for results, and most importantly, the consumer incorrectly called.
An additional cost to research from the TCPA comes from a growing number of frivolous lawsuits brought against good actors who accidentally fell out of perfect compliance – accidents for which the TCPA provides no forgiveness.
The increased time involved in cell phone research can be even more of a problem than cost. Time-sensitive studies, including most political and public opinion polling, are constantly imperiled. In situations where timely data is as critical as accurate data, information is not readily deliverable to companies, governments, and other entities that need to make swift decisions.
The diversion of resources has a particularly severe negative impact on small businesses. The most recent figures from the Census Bureau indicate there are 5,823 for-profit survey, opinion and marketing research companies employing 117,822 people in the United States. A majority of those companies are small businesses. Those figures do not even include the many non-profit and academic research organizations, nor the many thousands of researchers and research departments within non-research companies and organizations, or their counterparts within all levels of government.
While the TCPA restrictions on research calls to cell phones may not impact all researchers directly, since not all researchers do research by phone, it has definitely influenced many researchers to do less of their work over the phone because of rising costs and decreased efficiencies. It has also made it more costly for this country’s companies, organizations and governments to purchase accurate and timely research.
Most importantly, this equivalent of a tariff and delay on telephone research is ultimately passed on to the individuals the Commission is trying to protect, in the form of:
- higher prices for goods and services;
- lengthier time before new or better goods and services are brought to the marketplace;
- delayed introduction of new or better public policies; and
- a decreased amount of research ordered by companies, who might then bring less well-tested and researched products to market, harming consumers in the end because the goods did not fulfill consumer expectations.
C. No demonstration of harm in research calls to cell phones
There is no demonstrable harm from survey, opinion and marketing research calls to cell phones using an autodialer, nor did Congress identify any such harms when it drafted and passed the TCPA.
Any prospective harm from cell phone users receiving possibly unwanted research calls is likely to be very small:
- There are far fewer legitimate research surveys than there are potential telemarketing calls (legal or otherwise). The expense of conducting research and the ongoing innovations in statistical sampling limit the potential number of cell phone users who may be called for research studies.
- Since common research practice entails an introduction that explains the purpose of the call, research participants can make a quick decision –usually within a minute – as to whether or not they want to participate.
- Continuing focus of consumer complaints with regard to unwanted calls are commercial or political robocalls, not research calls.
- Research profession ethics require research companies and organizations to maintain and honor their own internal do-not-contact lists.
- As far as the cell phone user is concerned, technology makes automated dialing virtually indistinguishable from manual dialing – the average ear will never notice the difference.
Research use of autodialers also provides significant benefit to consumers that the TCPA currently curtails, including improved compliance with state laws such as time-of-day restrictions, as well as considerations in how many times and how frequently a given number can be called. That also includes making sure that phone numbers registered with research companies’ internal do-not-call lists are not accidentally dialed, nor emergency lines (the autodialing of which also is prohibited by the TCPA).
D. The TCPA negatively impacts representativeness of research studies by making it harder to reach three fifths of the nation’s households
The number of American households that are cell phone only or cell phone mostly continues to skyrocket. Preliminary results from the National Center for Health Statistics’ (NCHS) January to June 2014 National Health Interview Survey (NHIS) indicate that more than two-fifths of American homes (44 percent) had cell phones and no landline phones in the 1st half of 2014 – a 3 percent increase in the preceding 6 months, and more than double since 2008. About 43.1 percent of all adults (103 million) lived in wireless only homes – and the same for 52.1 percent of all children (38 million children).
In addition, a sixth of American homes (14.8 percent) still had a landline, but received all or almost all calls on their cell phones.
These combined 58.8 percent of American households can only be reached on their cell phones. Without following sometimes arduous procedures to obtain consent, such numbers must be separately identified, sampled and then dialed manually. Because of the added cost in time and resources, many studies inevitably under-represent this three fifths of American households – and data indicate that this majority of households are by no means identical to the rest:
- The cell phone only population in particular is more likely to be younger, include more renters, consist of a higher proportion of non-Whites, and have lower income as compared to the entire U.S. landline population.
- Hispanic adults (56.1 percent) are much more likely than non-Hispanic white adults (39.6 percent) or non-Hispanic black adults (44.9 percent) to be in cell phone only households. 
- Non-Hispanic Asian adults (19.5 percent) are more likely to live in cell phone mostly homes than Hispanic adults (14.6 percent), non-Hispanic white adults (16.8%), and non-Hispanic black adults (16.9 percent).
- More than two-thirds of adults aged 25–29 (69.3 percent) and more than three-fifths of adults aged 30–34 (64.9 percent) live in cell phone only households. These rates are even greater than the rate for 18–24 year olds (57.8 percent) living in cell phone only homes. 
- Nearly two thirds of adults who rent their homes (64.6 percent) only have cell phones, approximately twice as many as adults living in “homes owned by a household member” (32.9 percent). However, adults living in rented homes (11.1 percent) are less likely than adults living in household-member-owned homes (19 percent) to live in cell phone only homes. 
- Adults living in poverty (59.1 percent) are more likely than higher income adults (40.8 percent) to be living in cell phone only households. However, adults living in poverty (9.1 percent) are much less likely than higher-income adults (20.0 percent) to be living in cell phone mostly homes. 
- Adults living in wireless only homes are much more prevalent in the Midwest, South, and Western U.S. than in the Northeast. 
Therefore, these populations will be under-represented in critical research areas, including political and public opinion polling, unemployment measures, health care access, and in certain health indicators.
The higher prevalence of some key health indicators among the cell phone only population is the reason that NCHS started regular measurement versus cell phone mostly and landline households in the first place. For example, cell phone only adults are much more likely to binge drink and be current smokers than adults living in landline households. Cell phone only adults are also more likely to lack health insurance. Interestingly, they also are more likely to report that their health status was excellent or very good, more likely to experience serious psychological distress, less likely to have ever been diagnosed with diabetes, but more likely to have ever been tested for human immunodeficiency virus (HIV), the virus that causes AIDS.
It is unlikely that all these populations would wish to be disenfranchised from research studies (which serve as an ombudsman for the American public). The federal government goes to great lengths to ensure that all citizens are represented equally in the decennial Census. So why should the Commission seek to continue to impose a tariff on research, fueling coverage bias and making these populations less likely to be represented? The Commission has a responsibility to avert such outcomes.
E. The cell phone marketplace has changed dramatically
The broader marketplace of wireless service has changed significantly since the TCPA’s passage in 1991.
According to recent Congressional testimony, there were as few as 7 million cell phone subscribers in the country when Congress passed the TCPA in 1991 as compared to the more than 300 million subscribers in 2011. According to Ericsson, 97 percent of American households report having a mobile phone. As already noted, 58.8 percent of American households can only be reached on their cell phones.
Hurdles facing survey, opinion and marketing research with the cell phone only and cell phone mostly populations are further exacerbated by the prepaid and pay-as-you-go cell phone market. Cell phone numbers assigned to such plans change subscribership frequently, making it more challenging to reach the correct users in a timely fashion. CTIA-The Wireless Association estimates that almost a quarter of Americans (23.4 percent) with a cell phone had a prepaid or pay-as-you-go plan at the end of 2013 (equal to more than 75.3 million wireless subscribers), compared with 15 percent in 2007. CTIA has also claimed that some markets have up to 30 percent of subscribers in prepaid plans.
Moreover, the cost of a cell phone call in the early nineties was ten times more than today, dropping from approximately 44 cents per minute in 1993 to less than five cents per minute by recent estimates.
Cell phones are commonly and increasingly called for genuine research purposes via manual dialing. This practice is likely to continue to expand as the need for research grows, regardless of whether autodialers are available for legal use. The TCPA was drafted in 1991, when hardly anyone had a cell phone. Today, the U.S. has more mobile devices than people, and 58.8 percent of the population can only be reached on one of them.
To accelerate the benefits of research for citizens and consumers, the Commission should modernize the TCPA regulatory environment and make autodialers available for genuine survey, opinion and marketing research (not just by or for the federal government) and not subject to the express prior consent requirements of the TCPA when calling a cell phone, consistent with the intent of Congress, in the public interest.
 RTI International, Petition for Declaratory Ruling, CG Docket No. 02-278 (filed September 29, 2014).
 47 CFR 64.1200
 47 U.S.C. 227
 The research profession is a multi-billion dollar worldwide industry, comprised of pollsters and government, public opinion, academic and goods and services researchers, whose members range from large multinational corporations and small businesses to academic institutes and non-profit organizations.
 See the MRA Code of Marketing Research Standards:
- #7: “Commingling research with sales or advocacy undermines the integrity of the research process and deters respondent cooperation. In addition, the possibility of harm from data sharing – such as health insurance companies adjusting an individual’s costs based on information disclosed about their health behaviors or financial companies denying someone credit based on their propensity for online shopping – are the focus of growing public debate about Big Data and data brokers. Respondents should be assured that information shared in a study will only be used for research.”
- And #10: “Members will ensure that information collected during any bona fide research study will not be used for any sales, solicitations or push polling after the fact.”
 MRA developed a legal definition of survey, opinion and marketing research, in consultation with the broader research profession: “the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences and behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior.”
 H.R. Rep. No. 102-317 (1991).
 137 Congressional Record S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings).
 137 Congressional Record 518317 (daily ed. Nov. 26, 1991) (statement of Sen. Pressler).
 FCC 2003 TCPA Order: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014 (2003).
 See the MRA Code of Marketing Research Standards: #12. When collecting data, maintain an internal do-not-contact database as a complement to requests made by respondents for future communications and participation in marketing research projects. http://www.insightsassocation.org/issues-policies/mra-code-marketing-research-standards
 Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, January to June 2014. National Center for Health Statistics. December 2014. Available online: http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201412.pdf
 Prepared Testimony of Michael Altschul, General Counsel, CTIA – The Wireless Association before the House Subcommittee on Communications & Technology regarding the Mobile Informational Call Act of 2011. Nov. 4, 2011.
 “Ericsson Mobility Report: On the Pulse of The Networked Society.” November 2014. http://www.ericsson.com/res/docs/2014/ericsson-mobility-report-november-2014.pdf
 Blumberg (Footnote 12).
 “CTIA's Wireless Industry Summary Report, Year-End 2013 Results.” CTIA-The Wireless Association. 2014.
 Niraj Sheth and Roger Cheng. “As Growth Slows, Phone Rivals Start Dialing Prepaid Services.” The Wall Street Journal. May 14, 2010. Page B1.
 Altschul Testimony at 1, citing Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Fifteenth Report, 26 FCC Rcd 9664, Table 20 (2011) (indicating that the average revenue per minute for a wireless telephone call dropped from approximately 44 cents per minute in 1993 to five cents per minute in 2009) and Glen Campbell, Bank of America Merrill Lynch, 3Q Global Wireless Matrix, 2 (Sept. 28, 2011) (reporting that the average revenue per wireless minute was three cents, down from four cents at the end of 2010).