The "overwhelming response" to a Federal Communications Commission (FCC) petition on the differentiation of marketing research from marketing in the Telephone Consumer Protection Act (TCPA) "further proves" the arguments of the petitioners.
Last year, the Insights Association and the American Association of Public Opinion Research (AAPOR) filed an FCC petition to clarify the difference between marketing research and marketing in the Telephone Consumer Protection Act (TCPA), eliminate unnecessary lawsuits, and reduce the costs and increase the acceptance and use of marketing research. The agency recently called for comments from the public to help consideration of the petition.
243 members of the Insights Association and AAPOR weighed in at the FCC during this period (see the honor roll below).
The Insights Association replied to a submission from trial lawyers Anderson + Wanca that the petitioners said "misrepresents the Petition, and is ultimately unpersuasive." The petitioners particularly rejected the trial lawyers' attempt to disregard a number of relevant court rulings because they "occurred at the pleading stage" and were thus "somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration" by the FCC. To the contrary, the two research trade associations noted that the trial lawyers' arguments are "unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery." In fact, trial lawyers "often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process."
Now that the public comment process is complete, the FCC may rule on the matters raised by the petition at any time. Especially since only one negative comment was registered (and now rebuffed), it is probble that these issues will be resolved as part of the comprehensive TCPA rule rewrite coming soon.
This post includes the honor roll of researchers who submitted comments, then the full Reply Comments from the Insights Association and AAPOR.
Honor Roll: Comments from 243 members of the marketing research and data analytics industry
We owe a great debt to the following members of the Insights Association who filed FCC comments in support of the petition:
- J.D. Power /article/fcc-action-needed-curtail-tcpa-trial-lawyer-fishing-expeditions
- Carlos Garcia, Garcia Research https://ecfsapi.fcc.gov/file/10620443614100/Garcia%20Research%20-Comments%20to%20Insights%20and%20AAPOR%20Petition%20(6.19.18).pdf
- Jordan Peugh, SSRS https://www.fcc.gov/ecfs/filing/106160911026116
- Melissa J Herrmann, SSRS https://www.fcc.gov/ecfs/filing/10622404724890
- Eran N. Ben-Porath, SSRS https://www.fcc.gov/ecfs/filing/10622779931014
- David Dutwin, SSRS https://www.fcc.gov/ecfs/filing/10619630706136
- Susan Sherr, SSRS https://www.fcc.gov/ecfs/filing/106223077502168
- Deborah Winneberger, SSRS https://www.fcc.gov/ecfs/filing/10621197767948
- Robyn Rapoport, SSRS https://www.fcc.gov/ecfs/filing/10620796228771
- Jeb Bullis, Voxco https://www.fcc.gov/ecfs/filing/10622384125636
- George Brezny, GB Marketing Research Solutions - https://www.fcc.gov/ecfs/filing/1062176629464
- Willy Kaplan, California Survey Research Services https://www.fcc.gov/ecfs/filing/1062028339659
- Andrew Richardson, Lucidity Research - https://www.fcc.gov/ecfs/filing/10621714414038
- Julie A. Davis, Xcel Energy - https://www.fcc.gov/ecfs/filing/10621072425703
- David Lustig, Optimum Solutions Corporation/OSC World https://www.fcc.gov/ecfs/filing/10620028629788
- Crystal MacAllum, Westat https://www.fcc.gov/ecfs/filing/10620910615131
- Shawn Herbig, IQS Research https://www.fcc.gov/ecfs/filing/1062152490695
- Alan Appelbaum, Market Probe International https://www.fcc.gov/ecfs/filing/10620394621454
- Michael Halberstam, ISA https://www.fcc.gov/ecfs/filing/10620139633001
- Mark Rosenkranz, Pacific Market Research https://www.fcc.gov/ecfs/filing/1061539581677
- David Stewart, Loyola Marymount University https://www.fcc.gov/ecfs/filing/10616235967838
- Jeff George, WBA Research https://www.fcc.gov/ecfs/filing/10618852208159
- Lara Pow, SQM https://www.fcc.gov/ecfs/filing/106180064016595
- Bob Davis, Davis Research https://www.fcc.gov/ecfs/filing/10618269818414
- Joseph Harmon, Harmon Research Group https://www.fcc.gov/ecfs/filing/1061862709493
- Valerie Lykes, J.D. Power https://www.fcc.gov/ecfs/filing/1061942307733
- Shirley Panek, Confirmit https://www.fcc.gov/ecfs/filing/10620081181098
- Kim Dorazio, M. Davis and Company https://www.fcc.gov/ecfs/filing/1062047119881
- Eric Jodts, Westat https://www.fcc.gov/ecfs/filing/1062067529378
- Gary Langer, Langer Research Associates https://www.fcc.gov/ecfs/filing/106200834903052
- Christine Filer, Langer Research Associates https://www.fcc.gov/ecfs/filing/1062268504025
- Carol Haney, Qualtrics https://www.fcc.gov/ecfs/filing/106201067100878
- Paul Nnanwobu, Random Dynamic Resources https://www.fcc.gov/ecfs/filing/106220064025990
- Ruth Bernstein, EMC Research https://www.fcc.gov/ecfs/filing/10622167312734
- Jason Eric Saylor, MAXimum Research https://www.fcc.gov/ecfs/filing/1062096722090
- Randa Bell, ASDE Survey Sampler https://www.fcc.gov/ecfs/filing/10622079250198
- Ricki Jarmon, Abt Associates https://www.fcc.gov/ecfs/filing/10622426818583
- Michael Link, Abt Associates https://www.fcc.gov/ecfs/filing/10620071150139
- Stephanie Marken, Gallup https://www.fcc.gov/ecfs/filing/106200666023018
- Ann Fouts, WSECU https://www.fcc.gov/ecfs/filing/10621897304100
- Frances M Barlas, Gfk https://www.fcc.gov/ecfs/filing/1062153650456
- Carla Lindemann, Issues & Answers Network https://www.fcc.gov/ecfs/filing/10621969623946
- Gregg Kennedy, Issues & Answers Network https://www.fcc.gov/ecfs/filing/10620347501924
- James Ratto, Survox https://www.fcc.gov/ecfs/filing/10621224734339
- Larry Hooper, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621572715561
- William Kirk, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106251367528039
- John Hunoval, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106220655819690
- Ricardo Pereira, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062550043120
- George Djecki, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106223076102446
- Kristy De Biasio, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062121222544
- Rob Cohen, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621208668441
- Warren Comunale, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062112204898
- John Wackerow, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106221703613092
- Eric Hunter, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10622037396736 (not
- Amity Menard, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10621960110237
- Thomas DeBiasio, Russell Marketing Research https://www.fcc.gov/ecfs/filing/1062150740502
- Marc Goulet, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106210582201256
- JoAnn Kirk, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10627999601147
- Althea Nicholas-Wood, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10625759811427
- Gregg Peterson, University of Michigan Institute for Social Research https://www.fcc.gov/ecfs/filing/10621294186900
- Michael Brillantes, Russell Marketing Research https://www.fcc.gov/ecfs/filing/106212363713057
- Gerard Holzbaur, Marketing Systems Group https://www.fcc.gov/ecfs/filing/10620227020633
- Matt Hancock, Charter Oak Field Services - https://www.fcc.gov/ecfs/filing/1062517874547
- Mindy Rhindress, Queens College - https://www.fcc.gov/ecfs/filing/10625160091309
- Carol Shea, Olivetree Research - https://www.fcc.gov/ecfs/filing/1062573136200
- Patrice Wooldridge, Wooldridge Associates https://www.fcc.gov/ecfs/filing/10625797724388
- Susan Saurage-Altenloh, Saurage Research https://www.fcc.gov/ecfs/filing/10627485701734
- Jonathan Meyers, J.D. Power https://www.fcc.gov/ecfs/filing/106222490209458
- Lance Hoffman, Opinion Access https://www.fcc.gov/ecfs/filing/10622304378925
- Andrew Caporaso, Westat https://www.fcc.gov/ecfs/filing/10622438526099
- Lee Quintanar, J.D. Power https://www.fcc.gov/ecfs/filing/10622448622075
- Seth Brohinsky, Abt Associates https://www.fcc.gov/ecfs/filing/1062257608358
- Jordan Klein, Abt Associates https://www.fcc.gov/ecfs/filing/1062266402880
- Annie Weber, Gfk https://www.fcc.gov/ecfs/filing/1062269789030
- Lynn Stalone, I/H/R https://www.fcc.gov/ecfs/filing/1062272517917
- Andrea J Sedlak, Westat https://www.fcc.gov/ecfs/filing/10622869518160
- Allen Porter, Survox https://www.fcc.gov/ecfs/filing/1062297817732
- Allison De Jong, Langer Research Associates https://www.fcc.gov/ecfs/filing/10623145729753
- Angelique Uglow, ReconMR https://www.fcc.gov/ecfs/filing/10623875623603
- Nancy Hernon, G3 Translate https://www.fcc.gov/ecfs/filing/106251255920285
- Melissa Waetzman, RTi Research https://www.fcc.gov/ecfs/filing/10625207616884
- Robert Lederer, RFL Communications https://www.fcc.gov/ecfs/filing/106252900724414
- Kim Adams, SNG Research Corporation https://www.fcc.gov/ecfs/filing/10625551516428
- Pam Kleese, Homesteaders Life Co. https://www.fcc.gov/ecfs/filing/1062592388208
- Jesse Armitage, J.D. Power https://www.fcc.gov/ecfs/filing/106212419311692
- Laura Bredenfoerder, BValley Communications and Market Research https://www.fcc.gov/ecfs/filing/106250751421562
- Andrew Teblum, Mars Research https://www.fcc.gov/ecfs/filing/1062532911485
- Eric S. Levy, Research Now - SSI https://www.fcc.gov/ecfs/filing/10625559816392
- Richard Worick, MSR Group https://www.fcc.gov/ecfs/filing/1062599817472
- Connie Dey-Marcos, Credit Union National Association https://www.fcc.gov/ecfs/filing/10625194624027
- Terry Lawlor, Confirmit https://www.fcc.gov/ecfs/filing/10625226469238
- Michael McGuire, McGuire Research Services https://www.fcc.gov/ecfs/filing/1062573303025
- Melissa Skogan, Assa Abloy Door Security https://www.fcc.gov/ecfs/filing/1062657285381
- Tara Hutton, Hilton https://www.fcc.gov/ecfs/filing/10626027321207
- Brenda Cronin, DentaQuest https://www.fcc.gov/ecfs/filing/10626144627875
- Judy Patton, Research Between the Lines https://www.fcc.gov/ecfs/filing/10626168108945
- Elizabeth Marie Herceg, National Association of REALTORS® https://www.fcc.gov/ecfs/filing/106263056500509
- Brian Jones, Chadwick Martin Bailey https://www.fcc.gov/ecfs/filing/1062687675640
- Lynn Welsh, Olson Research Group https://www.fcc.gov/ecfs/filing/1062676904852
- Tamara Kenworthy, On Point Strategies https://www.fcc.gov/ecfs/filing/1062779826257
- Bob Graff, MarketVision Research https://www.fcc.gov/ecfs/filing/10628059829216
- William Friedrich, M3 Global Research https://www.fcc.gov/ecfs/filing/10628166429393
- Dave Rothstein, RTi Research https://www.fcc.gov/ecfs/filing/106280940602032
- Michael Mermelstein, Nichols Research https://www.fcc.gov/ecfs/filing/1062752986175
- Catlin McAteer, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629226728789
- Michael Lloyd, Vectren https://www.fcc.gov/ecfs/filing/10629265281468
- Marcie Berenson, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629470522668
- Glenn Berenson, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629542828441
- Wayne Marks, HANSA/GCR https://www.fcc.gov/ecfs/filing/1062989492551
- Merrill Shugoll, Shugoll Research https://www.fcc.gov/ecfs/filing/10626188345875
- Brian S Lunde, CMI https://www.fcc.gov/ecfs/filing/10629807110617
- Karen Phillips, Epsilon https://www.fcc.gov/ecfs/filing/10629288630901
- Giovanni Nunez, Connected Research & Consulting https://www.fcc.gov/ecfs/filing/10629012275141
- Martha DeReamer, Matrix Group https://www.fcc.gov/ecfs/filing/10628453927616
- Simon Chadwick, Cambiar Consulting https://www.fcc.gov/ecfs/filing/106271187808961
- Julie Medalis, Brain Pot Pie https://www.fcc.gov/ecfs/filing/106263085728497
- Connie Cuff, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10626196716715
- Barbara Babula, Russell Marketing Research https://www.fcc.gov/ecfs/filing/10626077774427
- Lynda Manning, Radius Global Market Research https://www.fcc.gov/ecfs/filing/10629807110617
- Bill Dalbec, APCO Insight https://www.fcc.gov/ecfs/filing/10702931010952
- Bill Denk, MMR Research Associates https://www.fcc.gov/ecfs/filing/1070260820196
- Lisa Mancini, Global Data Collection Company https://www.fcc.gov/ecfs/filing/10706194345770
- Bob Torongo, GfK Custom Research https://www.fcc.gov/ecfs/filing/10709091299616
- Roberta Janasz-Nagle, RTi Research https://www.fcc.gov/ecfs/filing/107091799026857
- Ivy Boehm, JP Morgan Chase https://www.fcc.gov/ecfs/filing/10708200806062
- Walter Blotkamp, MMR Research Associates https://www.fcc.gov/ecfs/filing/10704046709479
- Kevin Jenne, Liberty Mutual Insurance https://www.fcc.gov/ecfs/filing/107020163619809
- Christopher Connolly, the Logit Group https://www.fcc.gov/ecfs/filing/106192191805822
And to the following members of AAPOR who filed comments at the FCC in support of the petition:
- mei ding https://www.fcc.gov/ecfs/filing/1062098465961
- Heather Morrison https://www.fcc.gov/ecfs/filing/1062012468203
- Timothy Triplett https://www.fcc.gov/ecfs/filing/10620130663992
- Deborah Beck https://www.fcc.gov/ecfs/filing/10620140623709
- Mark A Serafin https://www.fcc.gov/ecfs/filing/10621292517388
- Sunghee Lee https://www.fcc.gov/ecfs/filing/10621872108623
- Steve Schwarzer https://www.fcc.gov/ecfs/filing/1062176886934
- James Cassell https://www.fcc.gov/ecfs/filing/10621538519835
- Jennifer Oliver https://www.fcc.gov/ecfs/filing/1062165655080
- Terry Lyons https://www.fcc.gov/ecfs/filing/106212265730415
- Tim Vercellotti https://www.fcc.gov/ecfs/filing/10621237856642
- Donglin Zeng https://www.fcc.gov/ecfs/filing/1062163640008
- Michael Binder https://www.fcc.gov/ecfs/filing/1062161578676
- Rob Farbman https://www.fcc.gov/ecfs/filing/10621568328404
- Stephanie Slate https://www.fcc.gov/ecfs/filing/106212234016139
- Randall Brown https://www.fcc.gov/ecfs/filing/106212046708011
- Kathleen Call https://www.fcc.gov/ecfs/filing/1062021625377
- Elihu Katz https://www.fcc.gov/ecfs/filing/106212687906436 https://www.fcc.gov/ecfs/filing/10621051848519
- Michael Traugott https://www.fcc.gov/ecfs/filing/10621504303366
- Edward P Freeland https://www.fcc.gov/ecfs/filing/1062143953338
- Veronica Jones https://www.fcc.gov/ecfs/filing/10621302809613
- Lee M. Miringoff, Barbara L. Carvalho https://www.fcc.gov/ecfs/filing/10621374529761
- G. Evans Witt https://www.fcc.gov/ecfs/filing/1062021843304
- Trent Buskirk https://www.fcc.gov/ecfs/filing/106221320503271
- Ann Arthur https://www.fcc.gov/ecfs/filing/1062296823050
- Amy Sue Goodin https://www.fcc.gov/ecfs/filing/10619100883611
- Barbara Kerschner https://www.fcc.gov/ecfs/filing/10619738024450
- Janice Larson https://www.fcc.gov/ecfs/filing/106200220730690
- Stephanie Eckman https://www.fcc.gov/ecfs/filing/106203094300533
- Christopher Re https://www.fcc.gov/ecfs/filing/1062033956940
- Jamie Ridenhour https://www.fcc.gov/ecfs/filing/10622269224295
- Brian Brox https://www.fcc.gov/ecfs/filing/106222132324416
- Alan Roshwalb https://www.fcc.gov/ecfs/filing/10620285890118
- Chris Anderson https://www.fcc.gov/ecfs/filing/1062052115992
- Matt Hubbard https://www.fcc.gov/ecfs/filing/1062028825171
- Brian Robertson https://www.fcc.gov/ecfs/filing/106202956906939
- Paul Braun,David Oshman,Cynthia Lynn Miller https://www.fcc.gov/ecfs/filing/10620690429423
- John Nienstedt, Competitive Edge Research https://www.fcc.gov/ecfs/filing/106200550315585
- Goodwin Simon Strategic Research https://www.fcc.gov/ecfs/filing/106222161609148
- Harry L. Wilson https://www.fcc.gov/ecfs/filing/1062216296539
- Thomas and Dorothy Leavey Center for the Study of Los Angeles https://www.fcc.gov/ecfs/filing/10622092067027
- Jeff Bontrager https://www.fcc.gov/ecfs/filing/106220155915396
- Lisa Halm-Werner https://www.fcc.gov/ecfs/filing/10620066723353
- Liz Hamel https://www.fcc.gov/ecfs/filing/10622047522363
- Robert J Stead https://www.fcc.gov/ecfs/filing/106202155929671
- Ashley Koning https://www.fcc.gov/ecfs/filing/10622656102300
- David Keating https://www.fcc.gov/ecfs/filing/1062297233236
- Bistra Anatchkova, Brian Harnisch https://www.fcc.gov/ecfs/filing/10622728210743
- Kerryann DiLoreto https://www.fcc.gov/ecfs/filing/1062272071829
- John Charles https://www.fcc.gov/ecfs/filing/106222988902158
- Ronald E. Langley https://www.fcc.gov/ecfs/filing/106222492303035
- Kenneth Winneg https://www.fcc.gov/ecfs/filing/1062255206144
- Monika McDermott https://www.fcc.gov/ecfs/filing/10620637019898
- Ashley Clark,Lilian Yahng,Jesse Talley https://www.fcc.gov/ecfs/filing/1062252441346
- Casey J. Mier https://www.fcc.gov/ecfs/filing/1062060088737
- Hugh M. Clark https://www.fcc.gov/ecfs/filing/10620256204711
- Frederick S Rose https://www.fcc.gov/ecfs/filing/10619916400160 https://www.fcc.gov/ecfs/filing/10619043749172
- Nora Cate Schaeffer https://www.fcc.gov/ecfs/filing/1061909701481
- Charles D. Shuttles https://www.fcc.gov/ecfs/filing/10620235607640
- Janice Ballou https://www.fcc.gov/ecfs/filing/106190842617662
- Julia Tomassilli https://www.fcc.gov/ecfs/filing/10618042429000
- Jacob Rubinstein https://www.fcc.gov/ecfs/filing/10619651101865
- Peggy Krecker https://www.fcc.gov/ecfs/filing/106211694619758
- Bittie Behl-Chadha https://www.fcc.gov/ecfs/filing/106211991217226
- Janet streicher https://www.fcc.gov/ecfs/filing/1061926079686
- Stanislav Kolenikov https://www.fcc.gov/ecfs/filing/10619295538408
- Andrew Defever https://www.fcc.gov/ecfs/filing/1062041446609
- Andrew E. Smith https://www.fcc.gov/ecfs/filing/1061855829558
- Leah Roberts https://www.fcc.gov/ecfs/filing/10618599820276
- Jennifer Dykema https://www.fcc.gov/ecfs/filing/10616396423023
- David G. Taylor https://www.fcc.gov/ecfs/filing/10616962323770
- Jill Darling https://www.fcc.gov/ecfs/filing/10617992424202
- Matthew Stark https://www.fcc.gov/ecfs/filing/1061855865106
- Heidi Grunwald,Keisha Miles,David Tucker https://www.fcc.gov/ecfs/filing/10618569924761
- Alisha Creel https://www.fcc.gov/ecfs/filing/10618075291724
- Craig Helmstetter https://www.fcc.gov/ecfs/filing/10618211417737
- Mary Losch https://www.fcc.gov/ecfs/filing/10618787929492
- Mark Noyes https://www.fcc.gov/ecfs/filing/1061867161333
- Paul J Lavrakas https://www.fcc.gov/ecfs/filing/1061624329111
- David Metz https://www.fcc.gov/ecfs/filing/10616139302268
- Robert Oldendick https://www.fcc.gov/ecfs/filing/106171889301660
- Matthew Boxer https://www.fcc.gov/ecfs/filing/1061782966317
- Hank Zucker https://www.fcc.gov/ecfs/filing/106160439114478
- Robert P. Daves https://www.fcc.gov/ecfs/filing/10622381409627
- G. Donald Ferree, Jr. https://www.fcc.gov/ecfs/filing/10622825426308
- Jon Krosnick - https://www.fcc.gov/ecfs/filing/10621937320897
- Edward Chervenak https://www.fcc.gov/ecfs/filing/1062139987375
- Joshua Starr https://www.fcc.gov/ecfs/filing/1062153933895
- Brady T. West https://www.fcc.gov/ecfs/filing/10621040916976
- Robert Agans https://www.fcc.gov/ecfs/filing/1062071011989
- Colm O'Muircheartaigh https://www.fcc.gov/ecfs/filing/10620642002022
- Krista Jenkins https://www.fcc.gov/ecfs/filing/10620159078218
- Simmons Research https://www.fcc.gov/ecfs/filing/10620239607833
- Jolene D. Smyth https://www.fcc.gov/ecfs/filing/10620236431548
- Christopher P. Borick https://www.fcc.gov/ecfs/filing/106201759727791
- Xiaolei Pan https://www.fcc.gov/ecfs/filing/1062167976331
- Chintan Turakhia https://www.fcc.gov/ecfs/filing/106201015620618
- Robert L Santos https://www.fcc.gov/ecfs/filing/1062082142123
- Beth Webb https://www.fcc.gov/ecfs/filing/10620730117592
- Social and Economic Sciences Research Center (Rose Krebill-Prather) https://www.fcc.gov/ecfs/filing/1062069719029
- Mechelle Timmons https://www.fcc.gov/ecfs/filing/1062069097216
- Unknown https://www.fcc.gov/ecfs/filing/1061973026887
- Patty Meyer, UM ISR https://www.fcc.gov/ecfs/filing/106223064514024
- Lisa Straney https://www.fcc.gov/ecfs/filing/1062247353851
- Amber Ott https://www.fcc.gov/ecfs/filing/1062255759031
- Kristen Conrad https://www.fcc.gov/ecfs/filing/1062292519277
- Andy Peytchev https://www.fcc.gov/ecfs/filing/1062297275238
- Jody Dougherty https://www.fcc.gov/ecfs/filing/1062320532334
- Martha Van Haitsma https://www.fcc.gov/ecfs/filing/10623181117093
- Michael Schober https://www.fcc.gov/ecfs/filing/1062329211444
- Nancy Belden https://www.fcc.gov/ecfs/filing/10625650530997
- stephen gonot https://www.fcc.gov/ecfs/filing/1062509591454
- David DesRoches https://www.fcc.gov/ecfs/filing/10625695208193
- Patrick Murray https://www.fcc.gov/ecfs/filing/1062747076363
- Michelle Jones https://www.fcc.gov/ecfs/filing/1062937786499
Read the full comments in pdf or below:
The Insights Association, Inc. (“Insights Association”) and the American Association for Public Opinion Research (“AAPOR”) (collectively, “Petitioners”) are leading trade associations for the survey, opinion and market research industry. Together, they filed a petition for declaratory ruling (the “Petition”) on October 30, 2017, asking the Commission to clarify four areas under the Telephone Consumer Protection Act (“TCPA”) which directly impact their industry, including that “communications are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations.”
The Consumer & Governmental Affairs Bureau sought comment on the Petition on May 23, 2018. Since that time, at least 235 members from Insights Association and AAPOR have filed comments requesting the Commission adopt the rulings suggested in the Petition.
This overwhelming response further proves the Petition’s argument: Namely, that in spite of decades’ worth of direction from the Commission that survey, opinion, and market research is not telemarketing, the market research industry has come under assault by a predatory plaintiffs’ bar, and urgent action is needed to curb TCPA abuses. Petitioners again reiterate their call for the Commission to adopt the rulings suggested in the Petition.
Among the comments filed since May 23, Petitioners locate only one in opposition to the Petition (the “A+W Comment”). For the following reasons, Petitioners believe the A+W Comment misrepresents the Petition, and is ultimately unpersuasive.
I. THE “ARGUMENT FROM THE PROFIT MOTIVE” HAS BEEN APPLIED TO BOTH SURVEY AND NON-SURVEY COMMUNICATIONS, AND SHOULD BE REPUDIATED, AS A GENERAL MATTER, BY THE COMMISSION
The A+W Comment argues that three cases cited in the Petition—Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc.; Sandusky Wellness Ctr., LLC v. Medco Health Sols.; and Physicians Healthsource, Inc. v. Stryker Sales Corp.—are “radically misconstrue[d]” by Petitioners, because the faxes at issue in these cases did not involve “survey, opinion, and market research studies.” According to A+W, “[a] closer reading of these cases demonstrates that the Insights Petition presents no genuine ‘controversy’ or ‘uncertainty’ for the Commission to resolve.”
Petitioners response to this objection is three-fold. First, the Petition does not, in fact, suggest that the faxes at issue in Boehringer, Stryker Sales, and Medco were surveys. The Petition clearly explains that Boehringer and Stryker Sales involved seminar invitations, and that Medco involved an informational list of medications. These cases were cited to illustrate the “argument from the profit motive,” which has the potential to affect any number of communications, including but not limited to surveys, that have traditionally been exempted from the FCC’s conceptions of “advertising” and “telemarketing” under the TCPA.
Second, the A+W Comment treats the three cases mentioned above as a group, and suggests that, because they did not involve surveys, they are somehow irrelevant to Petitioners concerns. In so doing, A+W glosses over the fact that theses cases are directly at odds with one another. The Boehringer court, in concluding that informational faxes may be advertisements, reasoned that “[b]usinesses are always eager to promote their wares and usually do not fund presentations for no business purpose. Likewise, the Stryker Sales court reasoned that “the information referenced on the fax could have led primary care physicians to refer more patients or discuss orthopedic products more frequently, and this in turn could stimulate demand for Defendants’ products.” Each of these were examples of the “argument from the profit motive” which Petitioners have requested the Commission correct. In contrast, the Medco court explained that “[t]he fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.” This rationale was offered by Petitioners as an alternative route for the Commission to formally endorse. As highlighted in the Petition, the differences between these cases is precisely the kind of “uncertainty” or “controversy” which the Commission can – and should -- clarify.
Third, the A+W Comment conveniently fails to mention that the Petition’s lead example of the “argument from the profit motive” is Samuel Katz v. American Honda Motor Co., Inc., a TCPA class action involving customer service surveys. In Katz, the plaintiff argued that the calls were made “with the ultimate purpose of building clientele and repeat customers.” Despite no support for this anywhere in the TCPA or the FCC’s previous guidance, the court bought the plaintiff’s argument, reaching the conclusory determination that “the calls to Plaintiff were advertising because they were made for customer service purposes and to increase future sales and revenue.” As argued in the Petition, the court’s conclusion was in direct contradiction with decades of the Commission’s guidance on market research and surveys, and with the Commission’s guidance on customer service calls in particular. In short, the Petition highlights a number of cases which illustrate the “argument from the profit motive,” some of which involved surveys and some of which did not. The A+W Comment conveniently ignores this fact.
II. MISAPPLICATIONS OF THE COMMISSION’S “PRETEXT” RULES IN THE FAX CONTEXT HAVE BROADER IMPLICATIONS FOR ALL “DUAL-PURPOSE” COMMUNICATIONS
The A+W Comment also contends that Comprehensive Health Care Systems of the Palm Beaches, Inc. v. M3 USA Corporation is irrelevant to Petitioners’ arguments around “dual-purpose” communications because M3 “does not mention the word ‘purpose,’ let alone ‘dual-purpose’ and does not rely on the ‘dual-purpose’ ruling in the 2003 Order in any way.” According to A+W, because the M3 case involved the Commission’s 2006 Junk Fax Order, and specifically the ruling that a fax may be a mere “pretext” to a later advertisement, it does not illustrate a conflict or uncertainty with respect to the Commission’s broader “dual-purpose” framework.
But A+W ignores the fact that the Commission’s “pretext” rules, in the fax context, extend directly from broader questions about the “purpose” of a communication. When the Commission first laid down its “pretext” rule in 2006, it cited to the TCPA’s “telephone solicitation” definition: “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” In other words, the reason for the Commission’s “pretext” rule is that a “pretextual” fax is in fact a kind of “dual-purpose” communication. The Boehringer court’s analysis is also instructive on this score. After citing the Commission’s Junk Fax Order, the court reasoned as follows: “where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.” More generally, and as discussed below, it is simply incorrect for A+W to suggest that the fax and telephone rules exist in non-overlapping spheres.
III. THE A+W COMMENT ATTEMPTS TO CREATE A FALSE WALL BETWEEN TELEPHONE AND FAX RULES WITH RESPECT TO VICARIOUS LIABILITY AND THE NATURE OF MARKET RESEARCH
In addition to misrepresenting the nature of the “pretext” rule, the A+W Comment attempts to carve out faxes from the purview of the Petition in two other ways. First, A+W notes that the Dish Network decision concerned telephone calls, not fax communications, and that the Commission and courts generally decline to go through a “vicarious liability” analysis at all in the fax context. Of course, insofar as A+W is asserting that market research firms should never be liable in the fax context when communicating on behalf of a corporate client, Petitioners agree. However, Petitioners strongly disagree that the vicarious liability rules as they relate to market research firms, regardless of the mode of communication, do not present any uncertainty or controversy for the Commission to address. In Petitioners’ view, a generalized ruling from the Commission that its vicarious liability rules are specific to telemarketing, and do not apply to survey, opinion, and market research, would bring much-needed clarity to an area where much uncertainty still exists.
Second, A+W echoes its earlier pronouncements that the Petition’s citations to Boehringer, Stryker Sales, and Medco are inapposite to the questions at hand, and argues that these cases present no controversy or uncertainty. Here, Petitioners reiterate their earlier responses: these three cases were presented together with Katz (which was about survey research); these three cases are in conflict with one another; and the “argument from the profit motive” is directly relevant to all “informational” or non-telemarketing communications, including but not limited to surveys. Because courts, as illustrated by the Petition (and as illustrated by the Commission’s repeated need to mark out research from marketing over the years), do in fact struggle to understand the business model of survey, opinion, and market research firms, the fourth issue raised by Petitioners likewise presents an uncertainty or controversy for the Commission. The aim of Petitioner’s fourth requested ruling is simply for the Commission to elaborate on its long-established position on market research. This ruling would have general application to both telephone calls and fax communications.
IV. THE A+W COMMENT CONFLATES LEGAL AND FACTUAL ISSUES, AND IS DISMISSIVE OF THE COSTS OF DISCOVERY
Finally, the A+W Comment seems to argue that, because a number of the court rulings cited by Petitioner occurred at the pleading stage, somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration by the Commission. Petitioners would like to note that this argument from A+W is unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery. This is exactly the problem Petitioners are trying to address, and exactly why 235 Insights Association and AAPOR members have filed comments in support of the Petition. Law firms like A+W often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process.
The fact is the questions presented by the Petitioners are questions of law, not questions of fact, and questions which can (and should) be entertained and addressed by courts at the pleading stage. Additional guidance from the Commission, therefore, on the four points raised by Petitioners would provide much needed clarity, and will allow courts to better understand how market research is treated under the TCPA, and in so doing restore a measure of efficiency and fairness to TCPA litigation.
 See Petition at 1 (requesting the following four rulings: “(1) communications are not presumptively “advertisements” or “telemarketing” under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations; (2) the presence in a communication, or some other ancillary document or webpage, of a marginal element that might arguably be considered advertising does not convert the communication into a “dual-purpose” communication; (3) survey, opinion, and market research firms are not subject to the Commission’s vicarious liability regime as articulated in Dish Network; and (4) survey, opinion, and market research studies do not constitute goods or services vis-à-vis the respondent (the participant in a research study), and are not transformed into goods or services merely because they include some nominal inducement to participate”).
 See Exhibit A, attached hereto, for a list of members who have commented.
 Anderson + Wanca’s Comments on Petition for Declaratory Ruling of Insights Association and AAPOR, CG Docket No. 02-278 (June 22, 2018).
 847 F.3d 92 (2d Cir. 2017).
 788 F.3d 218 (6th Cir. 2015).
 65 F.Supp.3d 482 (W.D. Mich. 2015).
 A+W Comment at 2.
 Id.; see 47 CFR § 1.2(a) “The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty.”
 See Petition at 13 (“In Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., the Second Circuit was asked to consider whether a seminar invitation constituted an advertisement under the TCPA.”); id. at 11 (“Likewise, in Physicians Healthsource, Inc. v. Stryker Sales Corp., a district court in Michigan held in 2015 that a defendant’s seminar invitation could be an advertisement under the TCPA.”); id. at 15 (“In Medco, the defendant sent a fax listing medications available through a particular health plan.”).
 See Petition at 1 (requesting a ruling that all “communications,” not just surveys, “are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company”).
 847 F.3d 95-96 (2d Cir. 2017) (emphasis added).
 65 F.Supp.3d at 493 (emphasis added).
 788 F.3d at 225.
 Order Re: Defendants’ Joint Motion for Summary Judgment, No. 2:15-cv-04410 (C.D. Cal. May 12, 2017) (“Katz MSJ Denial”).
 First Amended Class Action Complaint, Samuel Katz v. American Honda Motor Co., Inc., No. 2:15-cv-04410 (C.D. Cal. Aug 19, 2016) (“Katz Complaint”) (emphasis added).
 Katz MSJ Denial at *4 (emphasis added).
 See Petition at 10-11 (discussing the Commission’s conclusion that certain kinds of customer service calls may constitute telemarketing, but only if they also incorporate a direct link to marketing or sales efforts).
 Order on Defendants’ Motion to Dismiss and Motion to Stay, Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M3 USA Corp., No. 16-cv- 80967, 2017 WL 108029 (S.D. Fla. Jan. 11, 2017).
 A+W Comment at 5.
 In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, Report and Order and Third Order on Reconsideration, 21 FCC Rcd. 3787 (2006) (“Junk Fax Order”).
 Id. at ¶ 54 (“Finally, we conclude that any surveys that serve as a pretext to an advertisement are subject to the TCPA’s facsimile advertising rules.”) (citing 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(10));
 847 F.3d at 95-96; see also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Expedited Declaratory Ruling of M3 USA Corporation, CG Docket No. 02-278 (March 20, 2017).
 See A+W Comment at 3 (The Second Circuit reversed the dismissal, ruling that “at the pleading stage, where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.” (emphasis in A+W Comment)); id. at 6 (“The court did not rule that the faxes “were . . . mere ‘pretexts,’” as the Insights Petition incorrectly states; it merely ruled that the plaintiff had adequately alleged a pretext to survive a motion to dismiss and obtain discovery.”).