Is the rigid implementation of the Telephone Consumer Protection Act (TCPA) restrictions on autodialer calls to cell phones protecting consumers from harm? Is it imperiling legitimate businesses in the conduct of their ordinary operations?

As you may recall, the TCPA forbids using an automated telephone dialing system to call a mobile device without express prior consent. Violations can be costly, and we're seeing an uptick in class action lawsuits against research companies this year. The Federal Communications Commission (FCC) has taken at times the broadest interpretations of the law, fueling such lawsuits. FCC Commissioner Michael O’Rielly recently weighed in on the growing backlog of TCPA petitions for clarifications, stating that, "It is time for the FCC to act to provide clear rules of the road that will benefit everyone, and that means acting on TCPA petitions before us."

Meanwhile, Congress has mostly been on the sidelines. There has been no full-bore attempt to tackle the TCPA by Congress since 2011, when then-Rep. Lee Terry (R-NE) tried to bring up legislation that would have clarified a lot of these issues. Activists went bananas, enough constituents mobilized, and the bill went down in flames.

However, Congressmen are seeing the need to weigh in more strongly now.

Rep. Scott Tipton (R-CO-03) wrote to the FCC in support of one particularly simple petition, which would confirm that patients who give their healthcare providers a contact phone have given the provider express prior consent to contact them at that number for follow-up. That the American Association of Healthcare Administrative Management (AAHAM) would have to file such a petition would have been laughable a decade ago, but the mounting cost of class action lawsuits challenging even such simple assumptions have grown dramatically.

Tipton’s name might ring a bell for researchers: he led efforts a couple of years ago to forbid the use of respondent incentives in federally-run or –funded surveys. Thankfully, he has turned his attention to more pressing matters, and landed on the same side as the research profession.

On the other hand, Sen. Ed Markey (D-MA), proud author of the original TCPA back in 1991 and usually on the opposite side of the research profession on privacy issues, recently led a group of Senators in warning the FCC against granting such petitions.

“We understand that the FCC is considering weakening some” provisions of the TCPA, they wrote. "These proposals would threaten privacy and result in an increase in disruptive and annoying calls for American consumers." Sens. Charles Schumer (D-NY), Ron Wyden (D-OR), Claire McCaskill (D-M)), Elizabeth Warren (D-MA), Richard Blumenthal (D-CT), Amy Klobuchar (D-MN), Tammy Baldwin (D-WI), Jeff Merkley (D-OR), Al Franken (D-MN) and Robert Menendez (D-NJ) joined Markey in filing comments with the FCC.

Because you can already call a consumer with manual dialing or express prior consent, the Senators contend, "there is no need to make the proposed changes to the TCPA." Of course, the Senators do not mention that manual dialing a survey is much more time-consuming (and thus as much as 5 times as expensive as a normal phone survey) and error-prone than when using some form of automation. Defining what automated versus manual means is in fact the crux of many petitions currently gathering dust at the FCC.

Then the Senators get to their point: "Consumers already believe they receive too many unwanted calls and texts.... The potential changes to the TCPA could make matters worse."

Many of those “unwanted calls” consumers might complain about are already illegal. Most complaints involve robocall scams – scams against which the Federal Trade Commission (FTC) has already been so effective at combating that they have to operate overseas. But indiscriminately blocking out most telephone calls seems to be an option on the table, instead of hunting down the lawbreakers.

The FCC has toyed with petitions regarding call-blocking technology that would allow consumers to block so-called “unwanted calls,” with a similar lack of transparency about what “unwanted” means. Some people interpret that to mean the two kinds of calls most of them hate: robocalls and telemarketing (often both in the same package). However, as MRA stated in comments to the FCC in January, the call-blocking technology “will potentially block all manner of non-telemarketing telephone calls, including calls for survey, opinion and marketing research purposes" – whether consumers might want to receive those calls or not.