Legal and Ethical Issues

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LEGAL AND ETHICAL ISSUES IN RDD CELL PHONE SURVEYS

U.S. Legal Restrictions on Calling Cell Phones – the TCPA

Under the federal Telemarketing Consumer Protection Act of 1991 (TCPA, 47 U.S.C. 227), which is enforced by the U.S. Federal Communications Commission (FCC), automatic telephone dialing systems cannot be used to contact a cell phone without the user's “prior expressed consent” – a content-neutral requirement that applies to all calls, including survey research calls.1 The TCPA defines “automatic telephone dialing system” as equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, in conjunction with dialing such numbers. As clarified by the FCC’s 2003 report, this includes all forms of autodialers and predictive dialers, and applies to intrastate calls, interstate calls and calls from outside the United States.2

The Need for Manual Dialing. To ensure compliance with this federal law, in the absence of express prior consent from a sampled cell phone respondent, telephone research call centers should have their interviewers manually dial cell phone numbers (i.e., where a human being physically touches the numerals on the telephone to dial the number). Of note, there is no “good faith exception” for inadvertent or accidental calls to cell phones, so not knowing that a cell phone number is being dialed (as happens in RDD landline samples that unknowingly reach cell phones) is not an acceptable excuse for violating the U.S. federal regulations. However, this does not include circumstances where a landline number has been forwarded to a cell phone; thus reaching a cell phone as a result of using an autodialer to call the sampled landline number does not violate U.S. federal law.

The Permitted Use of Neustar. Although telephone sample providers have been made aware of this law, and Neustar provides a useful service for recognizing cell phone numbers that have been “ported” from residential lines, their methods may not be a perfect solution to the problem. The Neustar database cannot be used by researchers to identify numbers in the landline frame for inclusion in a cell phone sample. Rather, to be in compliance with federal regulations, the Neustar database can only be used to purge cell phone numbers from a landline sample.

At the present time, the Marketing Research Association (MRA) is working for the benefit of the research community to amend the TCPA to exempt research calls.3 However, in the meantime, research call centers should only use manual dialing to reach cell phone numbers unless expressed prior consent has been received from the respondent that it is permissible to call her/him on her/his cell phone. This consent would occur, for example, if a respondent is first contacted on a cell phone that was hand-dialed by an interviewer, and agrees to the scheduling of a callback to that number. If this were to happen, then the research center could use its autodialer to place future calls to this cell phone number.

Of note, the requirement of expressed prior consent precludes outbound IVR (interactive voice response) and outbound TDE (touchtone data entry) surveys, which do not use manual dialing, from conducting an RDD survey of the cell phone frame.

Legal Considerations Regarding Text Messaging and Spam
The TCPA restrictions on using an automatic telephone dialing system to call a cell phone could apply to the sending of text messages as well as regular telephone calls. However, several appeals court cases have recently left the TCPA’s application unclear. In addition, researchers that send text messages to cell phones in compliance with the TCPA (either manually or with expressed prior consent) could find their messages subject to the CAN-SPAM Act (16 CFR Part 316), which regulates commercial e-mail (spam).

Even though legitimate survey and opinion research is not defined by the TCPA as being “commercial” in nature, researchers are encouraged to always include opt-out notices and capability in text messages, as would be required under the CAN-SPAM Act. There also are numerous state laws regulating bulk e-mail and spam, and unsolicited telephone calling, of which researchers should be aware. Researchers should consider the implications of those laws that may apply to any cell phone survey they may be planning to conduct in particular states.

Legal and Ethical Considerations Regarding Possible Harassment Due to the Number of Callbacks Used
There are various state level harassment laws in the U.S. that need to be considered when determining the placing of callbacks to a cell phone respondent. For example, under current Utah law, it is illegal for anyone to cause a telephone to ring “repeatedly” or “continuously” (the law is not more specific). Under Missouri law, it is considered harassment for anyone to make "repeated" telephone calls; (in one case brought under the law, four call attempts to an answering machine were sufficient to constitute harassment). In Hawaii, it is illegal to “repeatedly” make a communication anonymously or at an extremely inconvenient hour; and in Montana one cannot use a telephone to disturb, by repeated telephone calls, the peace, quiet or right of privacy of a person. Although a matter of interpretation, multiple callback attempts to a respondent runs the risk of violating any one of these state laws.

With the advent of Caller ID, even though a cell phone respondent may not hear the phone ring all of the times a survey organization calls, the respondent often will have a record of how many times calls from a given number have been made to her/his cell phone. Thus, in addition to being a possible ethical violation of what many might construe as “harassment,” and regardless of whether it also is a legal violation, those planning to conduct cell phone surveys need to think carefully about how multiple callbacks may affect their final response rates if they alienate cell phone owners throughout the survey field period with “too many” (e.g., more than 10) and/or “too frequent” (e.g. several calls within a 24-hour period) callbacks.

Ethical Considerations for Time-of-Day Calling Restrictions
Federal law limits telemarketing calls to between the hours of 8:00 a.m. and 9:00 p.m. local time for the respondent being called. State laws can restrict those hours further, and some states have specific content-neutral time-of-day restrictions for the use of autodialers. Even though telephone survey researchers are not restricted by these laws, MRA recommends that researchers abide by the applicable federal and state laws regarding time of calling for the location of the respondent being contacted. 
This is further complicated in cell phone surveys because some people likely will be reached in another time zone than the ones the survey sample is meant to cover geographically. Thus, “local” time for a cell phone respondent might be other than what the survey organization assumes it is based on the area code of the cell phone being dialed. Therefore, interviewers who work cell phone survey samples should be trained about how to politely explain the inadvertent problem of reaching someone in a different time zone “too early” or “too late.”

Ethical Considerations for Taking Safety and Respondent Privacy into Account
As noted previously in this report, research has indicated that approximately one third of cell phone respondents in the U.S. complete their interviews in a location away from their home (cf. Lavrakas et al., 2010). The mobile nature of cell phone technology allows for a respondent to be engaged in numerous activities and to be physically present in various locations that would not normally be expected in reaching someone on a fixed landline number. In particular, the operation of a motor vehicle or any type of potentially harmful machinery by a respondent during a research interview presents a potential hazard to the respondent and to anyone else in the general vicinity of the respondent (e.g., fellow passengers in the car). However, even if someone is merely walking about while speaking on their cell phone, this could raise their chances for physical harm occurring (cf. Richtel, 2010).

Any researcher who conducts a survey that reaches people on a cell phone should take appropriate measures to help protect the safety of the respondent and whoever else may be nearby. For example, merely asking respondents whether they are operating a motor vehicle is insufficient because the potential risks from distraction are not limited to driving. Questions about specific activities also suggest inappropriately that the researcher is in the best position to make judgments about respondents’ safety (and to accept the consequences of an incorrect judgment). Therefore, it is suggested that researchers leave the responsibility for determining safety to the respondents themselves and encourage respondents to consider their own safety by asking about it directly (e.g., “Are you in a place where you can safely talk on the phone and answer my questions?”). If respondents indicate that they cannot safely talk, contact should be quickly ended, and interviewers should not extend the contact at that time by attempting to schedule an appointment for a callback.

Some survey respondents reached on cell phones may be seemingly oblivious of other persons in their vicinity who may be listening (willingly or unwillingly) to their conversation. As such, respondents in public or semi-private places should not be required to verbalize responses that could:

1. Reasonably place them at risk of criminal or civil liability;

2. Be damaging or to their financial standing, employability, or reputation; or

3. Otherwise violate their privacy. 
For example, asking someone questions about their history of criminal victimization or sexual behavior while they are on their cell phone in a public place may be very embarrassing to them, and likely would lead to a breakoff that could have been avoided had the researchers anticipated such circumstances.
Thus, whenever it is appropriate, and based on the nature of the topics being surveyed, researchers should have interviewers determine whether respondents on cell phones are in an environment where privacy can be maintained. Alternatively, whenever it is appropriate and based on the nature of the topics being surveyed, researchers should design their cell phone questionnaires so that answers to sensitive questions may be provided in a nondisclosive categorical format (e.g., answering with a “A, B, C” or “1, 2, 3”) rather than voicing more disclosive responses.
Also, it is suggested that checks on safety and privacy be made independently and at different stages of the interview. For example, a question about safety could appear immediately after a brief introduction, and/or midway through the questionnaire. Questions about privacy could follow a description of the survey, which would permit respondents to make informed decisions about the risks of disclosure.

Ethical Considerations for Remunerating Cell Phone Respondents
This topic is discussed in more detail under the next section of this report on Operational Considerations. Suffice it to say here that the issue of remunerating cell phone respondents in the U.S. stems from the ethical concern that survey researchers not do any harm to a survey respondent, including not causing the respondent to bear any financial burden on behalf of the researcher.

The Ethics of Transmitting Accurate Caller Identification Information
Given that cell phones in the U.S. routinely display the number of the party that is calling, researchers should avoid any inadvertent or purposeful falsification of Caller ID information, either in terms of the number displayed or the name of the calling party. MRA recommends that all researchers use (or require their calling centers and data collectors to use) calling equipment that is capable of transmitting Caller ID information and ensure that the telephone number and other identifying information that is transmitted allows the call recipient to identify the entity making and/or responsible for the call. It also is advised that the transmitted number be one that the respondent can call back on.
Research indicates that, “the Caller-ID transmission works as a sort of ‘compact invitation letter,’ similar to that found for advance letters which underscores the legitimacy of a survey, takes away suspicion, and communicates the value of the survey thereby positively influencing response rates” (Callegaro, McCutcheon and Ludwig, 2005). The effect of this on telephone survey response rates, at least with landline RDD samples, has been shown to be a positive one (cf. Trussell and Lavrakas, 2005).

The Ethics of Maintaining an Internal Do Not Call List
Because nonresponse due to refusals often has been found to be higher in cell phone surveys compared to similar landline surveys, it is likely that proportionally more persons contacted on their cell phone will tell an interviewer “No, I won’t participate, and put me on your Do Not Call list!” than will happen within a landline sample. Thus telephone survey organizations that conduct cell phone surveys should consider the ethics of maintaining an internal list of cell phone numbers to respect the wishes of owners who have requested not to be called again by the organization. This list would be used to screen a cell phone survey’s initially designated sample of RDD numbers and matches would be purged. (Similar to what should be done when purging such numbers from landline samples, all the purged cell phone numbers should be treated as refusals in any response rate calculations for that cell phone survey.)
In setting up an internal Do Not Call list, a survey organization should give explicit consideration to (1) how quickly the number should get added to the list, (2) how long the number should remain on the list, and (3) what respondents should be told if they ask questions about the list.

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3 See the MRA’s Government Affairs site: www.mra-net.org/ga