U.S. Regulator Shields Telephone Survey Research From Further Restrictions

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FOR IMMEDIATE RELEASE

February 15, 2012
CONTACT: Howard Fienberg, Marketing Research Association; (202) 570-7312

U.S. Regulator Shields Telephone Survey Research From Further Restrictions

(Washington, DC) The Federal Communications Commission (FCC) today unanimously approved new regulations under the Telephone Consumer Protection Act (TCPA) – the key law restricting telephone survey research across the U.S. – that will prohibit most telemarketing robocalls while continuing to permit survey research calls.

When proposed in early 2010, the draft regulations would have required “express prior written consent” for research calls to cell phones using an autodialer. Following a year and a half of entreaties from industry stakeholders and Members of Congress, the agency apparently dropped that specific provision before passing a final version of the regulations this morning. The final version focuses strictly on the FCC’s original stated intent: harmonizing the regulation of telemarketing “robocalls” with the Federal Trade Commission (FCT) and not impacting regulation of survey research calls.

“The research profession is gratified to be recognized in the FCC actions this morning, as the requirements for telephone survey research remain unchanged,” said Howard Fienberg, PLC, director of government affairs for the Marketing Research Association (MRA). We continue our efforts to legalize autodialed research calls to cell phone users.”

Existing FCC regulations under the TCPA prohibit the use of an “automatic telephone dialing system” to contact “any telephone number assigned to a …cellular telephone” without the “express prior consent” of the party being called. This requirement applies to both telemarketers and survey researchers.

 “By requiring that all consent be written, the proposed rules could have made it even harder to conduct research based on viable representative samples,” Fienberg said. “That would have hurt research providers, their clients and the public that benefits from research.”

The new FCC regulations will only require express prior written consent for telemarketing robocalls. The regulations also will require telemarketing robocalls to offer an automated opt out function and will set more stringent limits of abandoned telemarketing calls.

MRA filed comments with the FCC in 2010 and helped convince Congress to weigh in as well. Last week, Fienberg and MRA member Michael Mermelstein (G2 Associates) met with FCC staff regarding the proposed regulations.

MRA has been lobbying to exempt survey and opinion research from the TCPA restrictions on calls to cell phones for years, making the case Members of Congress and candidates for office.

While the full FCC regulatory changes will not be available for several weeks, MRA will offer detailed guidance once they are made public.

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Founded in 1957, the Marketing Research Association (MRA) is the leading and largest association of the opinion and marketing research profession in the U.S., which delivers insights and intelligence to guide the decisions of companies providing products and services to consumers and businesses. Online at http://www.marketingresearch.org

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Update from the FCC Report & Order:

Page 12:  28. Moreover, while we revise our consent rules to require prior written consent forautodialed or prerecorded telemarketing calls, we maintain the existing consent rules for nontelemarketing,informational calls, such as those by or on behalf of tax-exempt non-profit organizations,calls for political purposes, and calls for other noncommercial purposes, including those that deliverpurely informational messages such as school closings. Our rules for these calls will continue to permitoral consent if made to wireless consumers and other specified recipients, and will continue to require noprior consent if made to residential wireline consumers.73 Commenters support distinguishingtelemarketing calls from non-telemarketing, informational calls.
 
...we note that many commenters expressed concern about obtaining written consent for certain types of autodialed or prerecorded calls,
including debt collection calls, airline notification calls, bank account fraud alerts, school and university
notifications, research or survey calls, and wireless usage notifications.76 Again, such calls, to the extent
that they do not contain telemarketing messages, would not require any consent when made to residential
wireline consumers, but require either written or oral consent if made to wireless consumers and other
specified recipients.
 
Page 13: ... we note that Section 227(b)(1)(A) and our implementing rules continue to require some form of prior express
consent for autodialed or prerecorded non-telemarketing calls to wireless numbers.81 We also maintain
the requirement of prior express consent for autodialed or prerecorded non-telemarketing calls to wireless
numbers that are not subject to any exemptions under Section 227(b)(2) of the Act. We leave it to the
caller to determine, when making an autodialed or prerecorded non-telemarketing call to a wireless
number, whether to rely on oral or written consent in complying with the statutory consent requirement.

Page 39: Research organizations expressed a concern opposing written consent for autodialed or
prerecorded calls that deliver research or survey messages. For instance, Marketing Research Association
(MRA) states that small businesses conducting research studies that include cell phone users in their
samples would face increased costs if a written consent standard is adopted.21 The Commission does not
require prior express written consent for autodialed or prerecorded informational, non-telemarketing calls.


The new regulations in the Federal Register, June 12, 2012.

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