New FCC Regulations: What do they Mean?
In a heated vote at the FCC last week, a measure for ‘clarifying’ regulations on so-called ‘robocalls’ was adopted 3-2 between partisan lines. While the official regulations have not yet been published, here’s what the commission established:
1. Robocalls, autodialers, automated surveys, etc. are effectively one and the same to the FCC
When most people hear the term ‘robocall,’ they likely think of automated calls with a prerecorded voice.
Not so, according to the FCC.
Instead, the commission is targeting the action of autodialing specifically, which includes both prerecorded messages, as well as live agents. So then, what counts as autodialing, you might ask? The FCC has an answer:
2. An autodialer is “any technology with the capacity to dial random or sequential numbers”
So, then, what does this definition include? The simple answer (provided by a commissioner, no less) is this:
Everything, apart from your grandparents’ rotary phone.
Any computer, cellphone, or traditional landline telephone has the capacity, if programmed or rigged in a certain manner, to dial random or sequential numbers. Even if the FCC changed their interpretation slightly to exclude traditional hand-dialed phones, the vast majority of call centers use a form of telephony that has the capacity to dial a list of numbers.
3. Mobile contacts must provide prior consent to be called under any non-emergency circumstances, with the exception of banking and medical alerts.
Effectively all non-emergency calls to cell phones are lumped into the same category; telemarketing, survey research, political calls, etc. are all rendered spam without prior consent. While the FCC’s press release did not discuss the medium for “express consent,” it was mentioned that oral consent will suffice for non-telemarketing calls. Of course, consent is required prior to the call taking place, so oral vs. written is moot.
4. ‘Do not disturb’ technology, reassigned numbers, etc.
There were several other, less important (for our industry, anyway) measures that the commission passed as well. Among the most pertinent is the ‘do not disturb’ technology, which essentially gives the green light to telecom companies to block autodialers on behalf of their customers. This would likely be offered on an opt-in basis, and it remains unclear to what extent telephone companies will participate. As far as we can tell, this technology operates using a blacklist of known autodialer numbers.
The commission also voted for a 1-strike policy for dialing customers with reassigned numbers. That is, if the previous owner of your number had consented to calls from a company, then the company may only contact you once to verify that you are the same individual who gave consent.
Other regulations included third party consent, consent revocation, SMS as calls, and internet-to-phone SMS.
What does it mean for the industry?
There are some far-reaching implications for researchers who utilize phone surveys, especially for those who call cell phones.
Since the FCC has effectively redefined our definitions of ‘robocall’ and ‘autodialer,’ potentially any call made to a mobile phone without ‘express consent’ from the receiver is violating the TCPA.
The only legitimate method for calling individuals without prior consent would require the use of analogue telephones, hand dialed by live agents. While call centers and research organizations might opt to change their models to become compliant, there’s one huge reason why they might not: the liability.
Because any call to a mobile phone may be subject to litigation, call centers will be playing a seriously high-risk game if they choose to continue cell dialing. While the call center business can be lucrative, US-based centers will drown in litigation to the point of extinction… which, it seems, is exactly what the FCC wants.
What does it mean for OS specifically?
Luckily, we aren’t really affected by the decision. We use two different forms of polling technology: automated landline polling, and smartphone polling.
As the Huffington Post explained (click here for full article), the “do not disturb” technology operates as a blacklist, with legitimate research firms placed on a whitelist. The polling industry should not be affected by this technology.
Smartphone polling circumvents the FCC regulations by engaging the user through apps, rather than using any voice features. Over half of all US cell phones were smartphones as of 2012, and those who do not have a smartphone are less likely to be a cell-only household. So, polling in this manner provides effectively the same coverage, without the complication of navigating regulations (or lawsuits).
The FCC is hellbent on destroying the framework of solicitation using traditional voice systems.
And why shouldn’t they be? …At least for telemarketing purposes.
My message to the FCC would be this: don’t throw the baby out with the bath water. The telemarketing industry annoys all of us, but there are legitimate researchers whose sole purpose is not to sell you a timeshare in Freeport. Consumers are rightly tired of these solicitations. Because of the FCC’s poor record of enforcing its own rulings, the telemarketing industry has run amok, sometimes even masquerading as legitimate research firms. We all agree that this must stop.
At any rate, the polling and research community should see this as an opportunity. It’s an opportunity to found the next era of opinion research. Not only do we have the challenge of collecting individuals’ opinions, but we must rethink the method of describing the accuracy of our findings. We need to continue trying new collection methods, new weighting and modeling techniques, and new reporting standards.