By Jason Anderson
Twenty-four years. That’s how long the Telephone Consumer Protection Act (TCPA) has been on the books, advising businesses and researchers and spammers to stop harassing people on their telephone. And during the following two decades, we’ve all generally done our best to operate in ways that ignore the intent of the TCPA to the greatest extent possible.
When the TCPA was originally passed, less than five percent of US households had a cell phone. Landlines ruled the day, and through that rule businesses and people with both good and ill intent endlessly blanketed the network with unsolicited phone calls and faxes (remember those?). Today, 91% of US households have a cell phone, and the sour relationship we’ve all experienced with those unwanted phone calls has shifted over to mobile.
For over two decades, we have observed this trend, marching along with our random-digit dialers and happily collecting data from people who (in retrospect) may not have been quite as happy as we were to have that conversation. This dynamic has festered for most of our adult lives. There were brief moments of respite, such as the honeymoon years immediately after the establishment of the FCC national do-not-call registry. But spammers care little about regulatory boundaries, slithering from one penetrable point of exploitation to the next. It’s why we still receive email about Nigerian lotteries, phone calls inviting us to questionable timeshare presentations, and banner ads for gray-market products.
Recently, the Market Research Association and CASRO joined hands to push back against new rules recently announced by the FCC. The new rules restrict the use of autodialers to call cell phones in ways that make contacting potential respondents, well, illegal. The new rules are written broadly enough so as to potentially prevent similar practices in future, using as-yet-undeveloped technologies. The consequences of these new regulations can be seen in a recent settlement by Gallup (to the tune of $12 million) for its use of auto-dialers from 2009 to 2013.
While it’s often fun to point fingers at the lawyers, it’s worth considering an alternative explanation: maybe Gallup was violating the TCPA. Maybe our relationships with our cell phones are so much more intimate than it was with our landlines that practices that used to be innocuous now feel invasive.
Maybe the fact that you dialed a number randomly doesn’t erase the fact that it was an unsolicited call.
Maybe unsolicited calls have become so toxic in today’s culture that, even if there is a way to legally do so within the constraints of our current regulatory framework, it’s unappealing to do so.
Maybe our own behavior, and the never-ending stream of survey requests in every corner of our daily lives, has tainted the previously clean karma of the after-work phone survey.
Maybe our continued prioritization of client and business over people contributed to the current state of affairs.
This does leave anyone who uses phone-based interviewing in a pretty sour pickle, which explains the vigorous legal defense currently being prepared by the industry, but winning that fight won’t be anything to be proud of. People are tired of hearing from us, and find us annoying enough to sue us about it, and that does not bode well.
A more robust focus must be applied to the human experience of taking a survey, regardless of the channel. We must be more respectful of peoples’ time, and we must be more respectful of the value of their time.
Most importantly, we need to recognize that the FCC’s recent clarifications and expansion of these rules demands a higher level of vigilance for any organization using phone-based data collection. It requires infallible opt-out mechanisms, robust record-keeping, and a much more pro-active process for validating consent for future contact. Your smartphone, a Skype bridge, an automated dialer, your computer—all qualify as auto-dialers.
In short: comply with the intent of the law, which is to respect people’s time and privacy. The regulations will only change at the slow pace of politics, so it’s probably best to get comfortable with the new status quo.