PPP among those hoping to overturn restrictions on recorded messages

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Raleigh-based Public Policy Polling is among five plaintiffs suing to block enforcement of Federal Communications Commission rules put in place last year that toughened a provision of the 1991 Telephone Consumer Protection Act. If they're successful, consumers could be fielding recorded political ads and surveys on their mobile devices just as they do at home.

A spokesman for the FCC said the agency had not seen the complaint and did not have a comment.

The law was designed to shield consumers from unwanted calls at a time when text messages were expensive and the majority of unwanted calls came to land lines. More than two decades later, 43 percent of American adults live in households that have only mobile phones, according to the Pew Research Center. For pollsters such as PPP, reaching this population is critical in order to ensure representative samples but increasingly expensive because their automated methods are not allowed.

"It's harder to poll and account for poorer populations and younger segments of society who tend only to have cell phones and no landline," said Russ Swindell, client strategist for PPP.

PPP can use prerecorded surveys that ask recipients to press a telephone button to record their answers to questions.

In order to reach those with mobile phones, a pollster such as PPP has to use a live operator or reach them through pre-screened Internet panels. Live operators must hand-dial the number in question, rather than rely on an auto-dialer. Both those provisions make polling more time-consuming and expensive, Swindell said.

Companies who are sued and found responsible for violating those prohibitions can be fined $500 per call.

PPP, along with the American Association of Political Consultants, the Democratic Party of Oregon, Tea Party Forward PAC and the Washington State Democratic Central Committee, filed suit in North Carolina's Eastern District on Thursday to overturn those prohibitions.

The plaintiffs' case hinges on the fact that Congress has granted six exemptions to the law, including for package delivery or certain kinds of debt collection.

"By favoring commercial speech over Plaintiffs’ political speech, the cell phone call ban violates the constitutional rights of these political organizations," the lawsuit reads.

The suit says the rules are unconstitutional because they treat different kinds of speech differently based on content, something the First Amendment doesn't allow.

"The cell phone call ban is an impermissible means of advancing any legitimate interest of Defendant. The cell phone call ban is therefore unconstitutional," the suit reads.