A Quick Guide to the

Telephone Consumer Protection Act (tcpa)Introduction

The Telephone Consumer Protection Act (TCPA) was passed under the Bush administration in 1991 to restrict telemarketing calls which use automatic telephone dialing systems (also known as autodi-als), artificial or pre-recorded voice messages (often referred to as robocalls), and unsolicited faxes. Following a 2016 update on the TCPA’s application by the Federal Communications Commission (FCC), participation in a research dialed to a phone was declared to fall within the scope of the TCPA.

The Act was recently brought to light again as the Third Circuit Court of Appeal ruled that a request for a service’s feedback could not be presumed to be advertising or marketing, to the relief of the Market, Social and Opinion Research industry.

A particularity of the Act is that it applies differently to landlines and wireless numbers, the latter being more strictly regulated than the former. Conside-ring that as of June 2015, more than 45% of the adult population of the US could only be reached by cell phone, having a clear understanding of how the TCPA applies to survey-making is crucial in conducting ethical and responsible research.

Automatic telephone dialing system (ATDS):

an equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers. Although they do not fit this definition, according to the FCC this does include predictive dialers (= dialers which can initiate calls from a list of numbers based on technology that “predicts” the likely availability of a call center operator to handle the call if answered). The FCC has broadened the definition of an ATDS to include almost any dialing equipment short of a rotary phone, including most text-dialing platforms and devices.

What’s an automatic telephone dialing system?

Telephone-based research Wireless phones Landline calls

• Autodial Pre-recorded • Non-emergency Calls• Text

• Manually dialed Calls (Prior consent + Opt-out option)

Since prior consent is required in every case, it is not possible to use autodial for wireless numbers.

Inform yourself on whether you need prior consent1 Always provide an

opt-out option2

Implications for Market, Social, and Opinion Research

Keep the reassigned number database up your sleeve3

This makes that market, social and opinion research directly affected by these new rules. All autodialed or pre-recorded non-emergency calls to wireless phones are prohibited without prior expressed consent, regardless of the call’s content. Given the rising number of US citizens who only have a mobile phone, this might lead to significant issues of sampling. It is very important to note that these rules apply regardless of the original caller’s country. As of June 2015 over 45% of US adult population

could only be reached by cell phone

TIP: Keep proper business records of consent you were given (how & when you have received it), as in case of a complaint the burden of proof falls onto the caller.

Wireless phones

Landline calls

The TCPA, along with its numerous clarifications provided by the Federal Communication Commission (FCC) may be a bit difficult to navigate at first for someone wanting to inform themselves on how to conduct a telephone-based research.

Some clarification was brought when the FCC specifically rejected “arguments that the TCPA’s protections are limited to telemarketing calls to wireless numbers,” even though that was the original target and purpose of the 1991 law. The FCC’s rules therefore do not exempt or exclude research calls as the TCPA’s restrictions apply to all calls regardless of content and purpose, save for rules regarding the National Do-Not-Call List (see below).

What steps can you take to ensure compliance with the TCPA?

A. For calls as well as texts directed to wirelessphones: I. You will need to get oral or written consent

prior to reaching the party you wish tosurvey.

II. If a call recipient gives you their number, itcan also be considered as consent provided that they do not give you instructions to thecontrary.

III. You may contact a wireless number thatis on the National Do-Not-Call List if youreceived prior consent.

A. For landline calls, you do not need prior consent. I. This means that it is possible to use autodial

for landline numbers.

II. The TCPA allows for calls with the purposeof conducting research to be made tonumbers on the National Do-Not-Call List.

A. By law, the caller is obligated to provide thepossibility to revoke one’s consent regardinga robocall at any time I. If your research is done through a call:

the opt-out should be key-activated

II. If your research is done through a voice-mail: the opt-out should be providedthrough a toll-free number

III. If your research is done by text: the personsurveyed should be able to opt-out bytexting STOP

B. Naturally, the call recipient should be clearlyinformed of their right to revoke their consentas well as how to do so as soon as the firstcontact.

A. To avoid unwanted calls and texts, the FCChas set-up a national database of reassignednumbers, which allows you to keep track ofwhether you still have a given number’s consent.

B. Additionally, the FCC also allows for a“one-call-before-liability” standard for autodialer calls to wireless numbers that have beenreassigned to new users.