Gallup Case Confirms Fears re New TCPA Wordings

Polling firm Gallup has agreed a $12m dollar settlement fund for a class action lawsuit claiming it called cell phones using an autodialer without consent. Gallup says it has never auto-dialled a respondent on a cell phone. As DRNO understands it, US law now doesn't care if that's true or not.

Since mid-June, FCC approval has been given to a new definition which says a company is 'using an autodialler' if it uses any piece of equipment capable of making an automated call - even if some modification would be required. Republican Commissioner Michael O'Rielly says the new definition is 'so expansive that the FCC has to use rotary phones [pictured] as an example of technology that would not be covered because the modifications needed to make an autodialer would be too extensive'.

In more than an hour of statements about the new rules on June 18th, the Commissioners made no reference to surveys or polls, whether in terms of an exemption or otherwise. FCC Chairman Tom Wheeler, asked at a Congressional hearing on July 28th if pollsters could go 'the way of blacksmiths' thanks to the new rules, replied: 'Well, they have been, right?' [We don't know exactly what this means but apparently nothing good]

The Gallup case seems to confirm the fears of Marketing Research Association (MRA) Director of Government Affairs Howard Fienberg that the new definitions 'could seriously harm survey, opinion and marketing research conducted by phone' - and lead to an upsurge in 'frivolous legal assaults', with lawyers deciding research firms are a lucrative target.

Gallup's General Counsel Steve O'Brien told the HuffPollster column at www.huffingtonpost.com : 'Gallup has not, and will never, auto-dial a respondent on a cell phone. Gallup is a victim of an ill-defined law that penalizes companies based upon the 'capacity' of the call-center equipment they own rather than whether the equipment was actually used to auto-dial'.

The Gallup suit was filed by Kurt Soto on behalf of himself and a class consisting of all US people to whose cell phones Gallup placed a call 'using an automatic telephone dialing system' during the four years prior to the filing of the complaint. Soto claimed that during July 2013 he began receiving unsolicited calls on his cell phone and when returning them was answered by an automated voice saying the call had been made by Gallup for the purposes of 'polling' him on political and social issues. Soto, whose original complaint does not claim the calls he received were themselves automated, says he had never had any previous contact with Gallup. The class alleges that Gallup placed millions of robodialed calls 'to a bulk list of phone numbers, using a system that had the capacity to store or produce numbers and dial them at random, in sequential order, or from a database'.

The MRA warns that 'Researchers must strive to comply as best they can with the TCPA to avoid costly lawsuits like Gallup's', and points members to its detailed analysis, compliance suggestions and Q&A - see www.marketingresearch.org/article/new-us-restrictions-telephone-research-prompt-risk-management-debate-do-new-tcpa-rules-mean

Fienberg says of the developments: 'The TCPA was enacted at a time when hardly anyone had a cell phone. Now, with our nation sporting more mobile devices than people, the TCPA must be modernized. MRA is considering all options - regulatory, legislative and judicial - to respond to these new rules and support a positive business environment for legitimate research'.