Consultants are scrambling for legal cover following the FCC’s release of new rules governing polling.
Two industry trade groups recently joined the court battle against the commission’s July 10 Declaratory Ruling that added new calling restrictions. That legal challenge could take up to a year to play out.
In the meantime, the American Association of Political Consultants (AAPC), which is plotting a constitutional challenge to the Telephone Consumer Protection Act (TCPA), is advising its members on how to navigate the new terrain.
“Recent rulings by the FCC and others concerning calls to cell phones have created a great deal of concern and confusion among AAPC members,” Mark Mellman, president of the AAPC, said in an email to members Aug. 19. “AAPC has been engaged on these and related issues for months on behalf of our members, together with our counsel, Bill Raney of Copilevitz & Canter.”
The accompanying memo sent to AAPC’s members from the firm’s William Raney noted that “calls which do not use an ATDS [automatic telephone dialing system] or prerecorded voice can cold call cell phones in compliance with the TCPA.”
Moreover, having a speed dialer doesn't make a piece of equipment an ATDS. “This is relevant to the question of how many key strokes must be made to constitute ‘human intervention,’” Raney wrote. “The rule does not require human dialers to manually enter all digits of a number for there to be ‘human intervention.' … Using a hardware system which could dial without human intervention, but lacks the software to do so, is not acceptable under the FCC definition."
Raney goes on to define an ATDS. “The hardware determines whether the equipment is an ATDS or not, i.e. if the hardware configuration cannot dial without human intervention without additional hardware, it is not an ATDS,” he wrote. “If the equipment can dial without human intervention using the current hardware with software additions or modifications, it is an ATDS.” Raney referred members to Five9, Inc. and Interactive Intelligence for compliant “non-ATDS systems.”
He noted service providers “that play a minor role in sending calls or text messages, such as platform providers, are not liable for unwanted robocalls if the provider does not control the recipients, timing, or content of the calls, but instead ‘merely has some role, however minor, in the causal chain that results in the making of a telephone call.’”
But callers “are liable for robocalls to reassigned wireless numbers if the current subscriber has not provided consent, even if the past subscriber had provided express consent.
“There is a one-call exemption if the caller does not have actual or constructive knowledge of the number reassignment, but we think this is of limited value.”
The Council of American Survey Research Organizations (CASRO) and the Marketing Research Association (MRA) last week announced they've filed a “motion to intervene” in a court case challenging the calling rules the FCC implemented in July.
The survey industry groups join a consolidated proceeding that includes ACA International, Sirius XM Radio and the Professional Association of Customer Engagement. They are asking the U.S. Court of Appeals for the D.C. Circuit to halt the new TCPA rules.