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A New Day for the TCPA? banner image

A New Day for the TCPA?

If you field or sponsor phone-based research studies to gauge customer satisfaction, customer experience (CX), or voter sentiment in the US, you already know that complying with the Telephone Consumer Protections Act (TCPA) of 1993 impacts efficiency and effectiveness. Among the many components of the TCPA, the act states that “an automatic telephone dialing system (ATDS) cannot be used to call a mobile number unless express consent is provided. While the definition of “express consent” is pretty clear, other parts are more nebulous.

In spite of the absence of clear direction from the FCC, the industry has managed to adapt—albeit with increased cost for the operational shift. Call centers have added more list scrubbing services to identify cell phones so those numbers can be manually punched in using 10 keys on a Plain Old Telephone System (POTS) while putting land line numbers through a dialer to be as efficient as possible.

Over the years, the opinion industry has sought clarification from the FCC, especially on the definition of an ATDS (or “dialer”) and what constitutes “human intervention”.  In the meantime, call centers interpreted their risk and responded as they saw fit.

This past summer the FCC issued a ruling on the intent of the regulation that sent yet another shockwave through the industry, stating that if a system has the ability to store (mobile) numbers and potentially dial records without human intervention, that system is an ATDS and therefore subject to the TCPA.  The ruling came out at the same time that major research organizations were including more cell phone numbers – up to 75% – in their measured polling and surveying efforts in response to the rapid growth in mobile adoption. To comply with the regulations, these same organizations have scaled back to greatly reduce machine-enabled dialing.

The troubling part is that there is no way to be absolutely sure that none of the stored numbers are for mobile phones given the way that phone numbers are recycled.  While sample sources may indicate mobile vs land line, a number’s status can change at any time.  Companies can also use list verification service providers, but doing so prior to each call on a live database is costly and significantly adds to the final cost of conducting a phone interview.

Legal Challenges

After the latest ruling, research organizations have ramped up efforts on challenging the ruling and pushing for more clarity. Not only did the new regulations complicate and add to the cost of conducting telephone-based research, it left the door wide open for opportunistic attorneys and “professional plaintiffs” who lost no time filing complaints and lawsuits. Fortunately, a number of cases are being seen for what they are.

  • In July in the case of Stoops vs Wells Fargo NA, the District Court of the Western District of Pennsylvania ruled against the plaintiff. According to court records, Ms. Stoops had 11 TCPA cases pending after acquiring 35 cell phones. The judge stated that “The hope of receiving calls from creditors for the sole purpose of collecting statutory damages, are not among the sorts of interests (the TCPA was) specifically designed to protect.”
  • In September there was another favorable disposition. The US District Court, Middle district of Florida, ruled in Pozo v. Stellar Recovery Collection Agency, Inc. that Stellar’s system required representatives to manually dial all calls and was not capable of making any calls without human intervention and therefore was not using an ATDS. This case provides some precedence for the dismissal of similar cases where an interviewer selects a “dial now” button or similar functionality for a known cell phone number.

The Feds are Exempt

Also in July of 2016, the FCC issued a declamatory ruling known as “Broadnet” after one of the petitioners confirmed the Federal Government’s exemption from some of the TCPA’s regulations in saying that “the TCPA does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions”.

What what not clear is whether or not the TCPA applies to calls or texts sent by contractors acting on behalf of state and local governmental entities.  The Professional Services Council has filed a follow-up petition seeking further clarification from the FCC stating that as worded, the ruling may have narrowed the scope of relief to federal contractors.

First Amendment Argument

The TCPA is also being challenged on the grounds that the regulations violate the First Amendment. In May, in American Association of Political Consultants Inc. v. Lynch, five political organizations— that include state organizations for the Democratic Party and a Tea Party action committee, a bipartisan association of political consultants and a for-profit polling company. filed suit against U.S. Attorney General Loretta Lynch seeking a declaration that the TCPA’s restrictions on automated or prerecorded calls to cell phones violate the First Amendment.

First Amendment challenges have generally been unsuccessful in the past, but as there will soon be Republican control in the legislative and executive branches, there could be a change of interpretation.

Round and Round It Goes

With phones now being personal communications devices, there probably isn’t anyone who’s disappointed that there are restrictions on unsolicited telemarketing calls. However it’s clear that the what drove the original regulations in the ‘90s is different from today, and there is a need to make improvements.

For a crash course on TCPA compliance, see the  AAPOR TCPA Guideline

Other Cases and Challenges to Watch

Further clarification of the definition of an ATDS, the identity of a “called party” in today’s world of reassigned telephone numbers and definitions of acceptable consent revocation are being sought in ACA International, et al v FCC— Oral arguments were heard by the D.C. Circuit Federal Appeals Court on October 20, 2016.  The court’s decision is expected to come in early 2017.

TCPA / Regulatory Proposals to Watch

Other proposals related to the TCPA researchers will want to be tuned into as we move into 2017:

  • The Spoofing Prevention Act (S. 2558) (or the Anti-Spoofing Act of 2016 (H.R. 2669) as it is known in the House), passed the house committee in September, seeks to close a legal loophole that allows for “spoofing”, or presenting false caller ID information. 
  •  The Repeated Objectionable Bothering of Consumers on Phone (ROBOCOP) Act (S. 3026 and H.R. 4932) which seeks to require telco carriers to block activity using a falsified or “spoofed” caller ID.

 

Brian Fowler, COO

Market Research, Opinion Polling, Political Polling

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