US industry bodies the Insights Association and AAPOR have filed a petition with the Federal Communications Commission (FCC), seeking to clarify the legal differentiation between the intent to market and sell to individuals and the dissimilar intent to understand market needs.
The petition requests a ruling from the FCC that communications should not be presumed to be advertising or marketing under the Telephone Consumer Protection Act (TCPA), simply because they are sent by a for-profit company, or ultimately might be used to improve sales or customer relations. They have also requested that the FCC's 'vicarious liability' regime - whereby one person is held responsible for the actions or omissions of another - applies only to telemarketing and debt collection, and not to survey, opinion and market research firms.
In addition, the petitioners have asked that survey, opinion and marketing research studies are not regarded as goods or services provided to a research respondent, even if the studies involve an incentive for participation. The petitioners have urged the FCC to recognize that, like all for-profit businesses, market research companies advertise and market their services only to research sponsors and not to research respondents; and claim that some courts have begun using a loose interpretation of FCC guidance to find hidden sales and marketing purposes inside marketing research phone calls and faxes.
Tim Johnson, AAPOR President, says it is incumbent on the FCC to differentiate between MR and marketing. Insights Association CEO David Almy adds: 'Courts and trial lawyers are conflating marketing research with marketing to the detriment of survey, opinion and marketing research companies. Research has a fundamentally different purpose than sales and marketing. That researchers have paid millions to settle an epidemic of TCPA lawsuits is unnecessary, unwarranted and very often absurd'.
Web sites: www.insightsassociation.org and www.aapor.org .