TCPA Restrictions on Using Autodialers to Call Cell Phones

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Background
The Telephone Consumer Protection Act (TCPA) (47 U.S.C. 227 , 47 CFR 64.1200) prohibits the use of an “automatic telephone dialing system” to contact “any telephone number assigned to a …cellular telephone service” without “express prior consent” from the party being called.

Automatic telephone dialing systems (known as “autodialers”) are an essential tool of survey and opinion research. Almost every telephone research call requires them, in order to reduce both the time it takes to dial a number manually (a significant cost) and the chance of error. Automatic dialing also synchs better with the industry standard “computer-assisted telephone interviewing” (CATI) software that helps researchers properly execute and conduct calls.

More Than Half of America Only Reachable on Cell Phones
More than two-fifths of American homes (41%) had cell phones and no landline phones in the 2nd half of 2013 –double since 2008. About 39.1% of all adults (93 million) lived in wireless only homes -- and the same for 47.1% of all children (35 million children). In addition, a sixth of American homes (16.1%) still had a landline, but received all or almost all calls on their cell phones.1

These 57.1% of American households are by no means identical to the rest. The cell phone only population is more likely to be younger, include more renters and minorities, engage in more risky behaviors such as binge drinking and smoking, lack health insurance, and have lower income as compared to the broader U.S. landline population. These populations are thus under-represented in critical research areas, like political polling, unemployment measures, health care access, and health indicators.

MRA’s position: The TCPA restrictions constitute an archaic tariff from which bona fide survey and opinion research calls should be excluded.

  • Representative samples: Researchers need to be able to include cell phone users in their studies to have viable coverage in their samples – and 55.1% of households can only be reached that way. It is unlikely that these populations would wish to be disenfranchised from research studies (which serve as an ombudsman for the American public).
  • Cost multiplier: Researchers seeking to include cell phone users in their studies estimate that doing so takes longer and costs 2 to 4 times as much as an ordinary telephone study.2
  • Research not the intended target of the TCPA: Most TCPA provisions only target telemarketing and Congress and the FCC have always discussed the TCPA in that context. Original sponsor Senator Hollings said it was about “telemarketing calls placed to the home”3 and Senator Pressler said the TCPA was “for cost-effective protection of consumers” against “this invasion of their privacy by unrestricted telemarketing”.4
  • No demonstration of harm: Any potential harm from possibly unwanted research calls is likely to be very small. There are far fewer research surveys than telemarketing or other calls. Also, researchers normally open calls by explaining their purpose of the call so participants can make a quick decision -- usually within one minute -- as to whether or not they want to participate.

 


1 Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, July to December 2013. National Center for Health Statistics. July 2014. Available online: http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201407.pdf 

2 Those costs are also passed on to the government -- most agencies now require inclusion of cell phone only and cell phone mostly households in the research studies they conduct and commission.

3 137 Cong. Rec. S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings)

4 137 Cong. Rec. 518317 (daily ed. November 26, 1991) (statement of Sen. Pressler)

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