What will the demise of the "Mobile Informational Call Act" (H.R. 3035) mean for marketing research?

On December 12, 2011, the bill's sponsor, Rep. Lee Terry (R-NE-02), formally gave up, asking House Energy & Commerce Committee Chairman Fred Upton that H.R. 3035 "not be advanced by the committee".

While H.R. 3035 would have legalized calls "made for a commercial purpose that does not constitute a telephone solicitation", and some customer satisfaction research might qualify by that standard, other survey and opinion research calls to cellphones using an autodialer would still require express prior consent.

A committee hearing on the bill last month provided the first real opportunity for Members of Congress to engage on the issue of the TCPA's restrictions on autodialer calls to cellphones since the law's passage twenty years ago.

From one perspective, this might be a good development. Congress would likely only tackle this conentious issue once, so it would have been imperative to include an exemption for research calls in any final version. And the legislation's sponsors and supporters were opposed to including a research exemption, because H.R. 3035 was focused on communications involving some form of prior consensual relationship (which does not apply to most research calls).

On the other hand, the reason that Rep. Terry effectively withdrew this legislation is because of the huge backlash he faced: "...what we have learned is that there is no hope for this legislation. We have heard from our constituents. They are concerned about what they believe will happen should this legislation become law. We have convened meetings with numerous consumer groups, as well as other organizations who have an interest in this legislation, but we have been unable to reach any kind of consensus on language that bans unwanted cell phone calls, while allowing calls that are consented to. In an attempt to thread the needle and address the issues that have been brought before us, it is clear that this bill cannot be improved in a manner that will address the concerns of those involved."

The backlash was so strong that it may have either demonstrated how unlikely it would be for us to win a research exemption from the TCPA's autodialer restriction, or possibly have impaired our efforts by marshalling opponents and scaring Congressmen who might otherwise have been a little bit receptive to our entreaties.

I tend to think both possibilities are likely: it is better that H.R. 3035 has gone nowhere, but the fight over the bill has made it significantly harder for us to achieve our goal. As 2011 ends, we are closer to the goal than ever before, but face more serious challenges along the way.