Editor’s note: Abby Willman is the director of government and public affairs for CASRO, Port Jefferson, New York. This is an edited version of a post that originally appeared here the title “Rise in mobile phone-only homes poses legal challenge for auto dialing.”
Research needs to discern black and white in the considerable gray areas of the TCPA
Do you have a home phone? If so, you’re part of a rapidly shrinking majority. Two in every five American homes have only cellular phones, according to the June 2013 National Health Interview Survey. As Americans abandon landline telephones in favor of their smarter and more portable counterparts, research faces many new challenges. One of those challenges is complying with the Telephone Consumer Protection Act (TCPA), which is the primary federal regulatory framework that places restrictions on unsolicited calls.
What the law says: It prohibits, absent consent, virtually all non-emergency calls or texts made with an “automatic telephone dialing system” (ATDS) to cell phones. TCPA defines ATDS 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.” TCPA’s restrictions on calls made to landline phones is limited to commercial telemarketing and does not apply to non-commercial calls, such as those for survey research.
What it means for research companies: TCPA means research companies cannot use ATDS to make calls to cell phones unless the participant has given “prior express consent” for ATDS calls to his or her cell phone.
The gray area: The TCPA definition of ATDS raises questions about what existing technology runs afoul of the law and what technology falls outside the TCPA definition. Additionally, the “prior express consent” requirement leaves questions as to the duration and breadth of any consent given.
Is it time for a change? Courts across the U.S. have been taking on issues raised by the TCPA, including developing new interpretations of the regulation. For example, courts have wrestled with defining ATDS in real world terms, and they have explored what constitutes “prior express consent” under the law. There seems to be a trend to limit the definition of ATDS and to expand the breadth of “prior express consent,” but the courts’ rulings have not been consistent. In addition, a number of business and public interest groups have asked the FCC and the courts to apply more reasonable interpretations of the regulations that meet the realities of growing cell phone use.