On June 18, the Federal Communications Commission (FCC) will vote on new regulations that could seriously harm survey, opinion and marketing research conducted by phone. FCC Chairman Tom Wheeler (D) outlined his proposal this week in a blog post and fact sheet, but it is enough information for researchers to know that less accurate research results, higher costs, and more class action lawsuits will result, and the Telephone Consumer Protection Act (TCPA) is front and center.

So let’s revisit the TCPA as it stands now, the legal landscape, and what the new rules would mean for survey, opinion and marketing research.

Current law and regulations
The TCPA, passed in 1991, restricts most telephone research calls to cell phones by requiring express prior consent to use automatic telephone dialing systems (ATDS), commonly known as autodialers. The law was no big deal for research back then, when only a few people had cell phones, but now that 58.8% of households can only be reached on a cell phone, the TCPA is an archaic hindrance to telephone research. Manually dialing a survey is much more time-consuming (and thus as much as 5 times as expensive as a normal phone survey) and error-prone than when using even the simplest form of automation.

Accidentally autodialing a cellphone is no defense against penalties. 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 big a deal, but with the number of calls made for research, the potential damages in a class action lawsuit add up quickly.

Confusing robocalls, autodialers, etc.
Policymakers and activists can play fast and loose with their terms, using “unwanted calls,” “telemarketing calls” and “robocalls” interchangeably, as well as saying “robocall” when referring to a call made with an autodialer.

The TCPA statute defined an autodialer as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The FCC has progressively expanded the agency’s interpretation of that definition to cover just about all dialing technology that doesn’t involve manual hand-dialing (fingers hitting keys or the dial of a phone).

A robocall is a layman’s term for calls made using an automated or pre-recorded voice, interactive voice response (IVR) systems, or automated dialing announcing devices (ADAD). While pretty much any robocall is an autodialed call, the opposite is not usually true. Automated research calls have their own restrictions and best practices.

The existing lawsuit threat
"TCPA litigation grew by 560% between 2010 and 2014,” according to a coalition letter joined by the Marketing Research Association (MRA) earlier this year.

More importantly, trial lawyers have discovered that survey, opinion and marketing research can be a lucrative target for TCPA class action suits. MRA already knows of six TCPA class actions against research companies this year.

These new rules from the FCC will be an even bigger boon to such frivolous legal assaults.

New proposals
Chairman Wheeler has proposed that the FCC: (1) authorize call-blocking technology; (2) broaden the definition of an autodialer; (3) require that the express prior consent for autodialer calls to cell phones be written; (4) penalize calling cell phones that have been reassigned to new users; and (5) potentially extend the telemarketing opt out rules to non-telemarketing calls using autodialers. Wheeler said that the rules would be voted on all together at the Commission meeting on June 18.

(1) Call-blocking
According to Wheeler, the FCC will give “the green light for robocall-blocking technology” and clarify that it does not violate telecommunications carriers’ Title II responsibilities to complete calls. This is in response to a petition upon which MRA responded critically at the end of 2014. “The FCC wants to make it clear: telephone companies can – and in fact should – offer consumers robocall-blocking tools,” Wheeler said.

There is no reassurance that these call-blocking systems could or would differentiate between robocalls and calls using an autodialer. In likely the best case scenario, widespread adoption of such blocking will block out most autodialed research calls. Unfortunately, there is a potentially steep slippery slope that could lead to the indiscriminate blocking out of almost every telephone call -- whether manual, autodialed, or robocalled, whether consumers might want to receive those calls or not. Survey, opinion and marketing research calls would be blocked right along with everything else.

(2) Written consent
The new rule will also require that the express prior consent required by the TCPA to autodial a cell phone be written. This is the same thing the FCC proposed in 2010, which we and other advocates were able to convince the Commissioners to apply only to telemarketing calls when the rules were finalized in 2012.

What will constitute written express prior consent? As we know from the telemarketing-specific TCPA rules that came into effect in 2013, the consent must be sufficient to show that the consumer: (1) received “clear and conspicuous” disclosure of the consequences of providing the requested consent; and (2) unambiguously agreed to receive such calls at the number called. In addition, the consent cannot be obtained as a condition of any purchase of a good or service. The “written,” “signed” consent can be given by any medium or format permitted by the E- Sign Act, meaning consent via email, website form, text message, telephone keypress or voice recording are all acceptable.

Given that the standard in research is to keep identifiable records only as long as necessary for the completion of a study (data minimization, as the Federal Trade Commission so often demands), the proposed rule will place serious new recordkeeping burdens upon the profession and increase the risks to information security.

In cases where a cell phone has been made available as the point of contact to a client or researcher, or when a cell phone number has been made publicly available as a point of contact (such as in a voter registration database) this rule would likely still require signed written authorization. Because some political and public opinion pollsters have relied on voter registries as a consent mechanism for their dialing, a change in business practices will definitely be required.

(3) Defining an autodialer
Wheeler proposes to clarify the definition of an autodialer to “include any technology with the potential to dial random or sequential numbers.” The boundaries of the definition have been the focal point of many class action lawsuits.

MRA, like many organizations, has urged the FCC to clarify that only autodialers that have the current capacity (meaning, are currently being used for) generating and dialing random or sequential numbers are covered by the TCPA restrictions on calling cell phones. The original law was pretty specific in word and intent: it was aimed at telemarketers randomly or sequentially going through every phone number and harassing consumers. As Communications Innovators put it in their petition, “Congress was clearly focused on extensive wide-reaching “scattershot” calls, not specific and targeted calls.”

As we told the FCC, their 2003 rules “created an unnecessarily expansive and confusing regulatory landscape for conducting survey, opinion and marketing research in the United State. In order to protect our members, MRA has had to recommend consistently that the research profession avoid essentially any automation in research calls to cell phones and rely instead on insufficient and costly manually dialing by hand.”

Researchers dial pre-determined lists of numbers for any given research study – lists that are generated or provided separately from and well prior to the act of dialing. Even in a random digit dial (RDD) study, the “randomization” is handled either by a researcher or a company that specializes in compiling an appropriate sample of the population. Numbers are not generated randomly by the dialer or the dialer’s equipment, but are scientifically determined by technical experts based on the needs of specific research studies and their target audience of respondents. Therefore, it is unlikely that a limited definition of an autodialer would include most telephone research.

However, the FCC Chairman is clearly going in the opposite direction, ensuring that the FCC’s definition is as broad as possible, such that it will include not just predictive dialers, but “preview dialing” as well. FCC staff have said exactly that.

Preview dialing is sort of a well-intentioned compromise between manual dialing and predictive dialing (a computer dialing the numbers and matching connected calls with available interviewers). It involves the human interviewer making the conscious deliberate decision to dial a given number, even though an automated system ultimately makes the call. That human involvement, if it counts for anything, indicates a good-faith effort to comply with the TCPA, while still not costing a ton extra like manual dialing. However, many class actions have turned on whether or not preview dialers are autodialers under the TCPA, including the one filed against RTI International last year. We don’t know how many research companies/organizations use preview dialing, but once the new FCC rules are in place, it will be certainly illegal.

(4) Reassigned cell phone numbers
Wheeler wants to make clear that reassigned cell phone numbers “aren’t loopholes,” by requiring that "if a phone number has been reassigned, callers must stop calling the number after one call."

Cell phone numbers, especially those assigned to prepaid plans, change subscribership frequently, making it more challenging to ensure that the person being called is the respondent intended. The limit of one call for a researcher to determine that the recipient is not the intended respondent sounds nice, but does that include connecting to voicemail? Will recipients be required to affirmatively state that the phone has changed hands and Joe doesn't own this phone number anymore?

The vagueness in this proposal is the clearest invitation to rampant class action lawsuits of all of them.

(5) Opt out
The impact of the last proposal from Wheeler is hard to gauge, since it is vague. He wants to “make it easier for consumers to say "no" to robocalls. People won't have to fill out a form and mail it in to stop unwanted calls and texts. Any reasonable way of saying "no" is allowed.”

Does this apply solely to robocalls, or to all autodialed calls? Since Wheeler seems to use the terms interchangeably, we won’t know until we see detailed rules.

If it does apply to autodialed calls, this will be at minimum extending the existing telemarketing opt out rules onto everyone else, including researchers. Currently, internal do not call lists are a research industry best practice, but not required by law. Now, will researchers have to add a respondent to their internal opt out list if the respondent just hangs up on them or says “no thanks” before the researcher can even identify who they are, and if they’ve dialed the right respondent?

Until we receive details from the FCC, the jury is out on the opt out proposal.

Many of the “unwanted calls” consumers might complain about, and which Wheeler references throughout his blog, are already illegal. Most complaints involve robocall scams – scams against which the FTC has already been so effective at combating that the criminals have to operate overseas. Instead of helping to hunt down these bad actors and put them out of business, the FCC Chairman proposes rules that might lead to the indiscriminate blocking out of most telephone calls from good actors.

The proposal exempts emergency calls and some specific kinds of notifications, which will satisfy a few stakeholders, but not many.

The FCC Chairman’s new rules need to be rethought or rejected. Survey, opinion and marketing research calls need to be excluded from these changes, and preferably from the TCPA restrictions on autodialed calls to cell phones as a whole. We’ll continue to advocate that case and kep the research profession informed.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.