Survey Calls and the TCPA: When Market Research Becomes Telemarketing

A genuine survey call isn’t telemarketing, so the Do Not Call rules don’t reach it. A House committee report, quoted in the FCC’s 2003 order, says a call encouraging a purchase is covered “even though the caller purports to be taking a poll or conducting a survey.” Consent rules for robocalls and autodialed texts to cell phones apply whatever the call says. In my view, a company sued over research calls wins or loses on its scripts, call counts, and what happened after the last question.

Which TCPA rules reach a call that’s only a survey?

Rules that ignore content. The statute bars calls to cell phones made with an “automatic telephone dialing system” or an artificial or prerecorded voice unless the call is for an emergency purpose, is made with the called party’s prior express consent, or fits an FCC exemption, under 47 U.S.C. § 227(b)(1)(A)(iii). An autodialer is equipment with the capacity to store or produce numbers using a random or sequential number generator and to dial them, as the Supreme Court held in Facebook, Inc. v. Duguid. A prerecorded call plays a recorded or synthetic voice. Texts count. The Supreme Court noted in Campbell-Ewald Co. v. Gomez that “A text message to a cellular telephone, it is undisputed, qualifies as a” call under that provision. So do AI voices: the FCC’s February 2024 ruling, FCC 24-17, states that the restrictions on “artificial or prerecorded voice” calls cover “current AI technologies that generate human voices.”

Survey purpose doesn’t help on a cell phone. In Aranda v. Caribbean Cruise Line, Inc., a federal court in Chicago granted partial summary judgment to the plaintiffs on whether prerecorded “political survey” calls to cell phones broke the statute, while leaving the sellers’ own liability for trial. The court wrote that the calls were a violation “irrespective of whether the calls were made by or on behalf of a tax-exempt nonprofit, were made for a political or non-commercial purpose,” or never mentioned the defendants’ products.

Rules that apply only to sales calls. The Do Not Call Registry rule and the calling-hours rule apply to a “telephone solicitation,” as 47 C.F.R. § 64.1200(c) provides. The statute defines that term as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person,” with exceptions for calls made with the recipient’s prior express invitation or permission, to someone with an established business relationship, or by a tax-exempt nonprofit. The Do Not Call Registry is the federal list of people who opted out of sales calls. The FCC said in its 2003 order that calls outside the definition “will not be precluded by the national do-not-call list,” and that “These may include surveys, market research, political or religious speech calls.”

The middle case: prerecorded calls to home landlines. A recorded survey to a residential landline needs no consent if it “Is not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30-day period to the residential line” and honors opt-out requests, under § 64.1200(a)(3)(ii). The FCC said in its TRACED Act order, FCC 20-186, that this exemption covers “calls conducting research, market surveys, political polling, or similar noncommercial activities.” A company’s own satisfaction survey can use a parallel exemption in § 64.1200(a)(3)(iii) for a call that “Is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing,” with the same cap and opt-out conditions.

The 2020 cap and opt-out amendments became “effective July 20, 2023,” according to the FCC’s January 20, 2023 notice. The rule lets a caller go over the cap with the called party’s prior express consent. Exempt survey calls also need an automated voice or key-press opt-out within two seconds of the caller identification, plus a toll-free number reaching it in voicemail messages, under § 64.1200(b)(3). The caller must keep an internal do-not-call list under § 64.1200(d) and honor requests within a period that “may not exceed 30 days from the date of such request.” That drops to ten business days on April 11, 2025, under a March 2024 rule whose effective date the FCC set in an October 2024 notice.

Rules that apply to survey calls, side by side

The damages figures come from § 227(b)(3) and § 227(c)(5). A Registry claim needs “more than one telephone call within any 12-month period by or on behalf of the same entity.” For texts, I’d expect the cell-phone claim to run through the autodialer definition, and a platform that only sends to a stored customer list has a good argument that it doesn’t meet it. The autodialer post walks through that defense.

When does a survey become a sales call?

When a purpose of the call is to encourage a purchase, the survey label stops mattering. The FCC said in its 2003 order that survey calls “may be prohibited if they serve as a pretext to an otherwise prohibited advertisement or a means of establishing a business relationship.” In the same order the agency wrote that the prerecorded-message rule “should turn, not on the caller’s characterization of the call, but on the purpose of the message.”

In Golan v. Veritas Entertainment, LLC, the Eighth Circuit reviewed the dismissal of a suit over prerecorded calls that opened as a “45-second survey” about American values and went on to promote a movie. The plaintiffs got only an answering-machine message calling it “a public survey call.” The court agreed the messages “were not advertisements” because they didn’t mention any product, but held that purpose decides whether a call is telemarketing, and that content can help “but it is not dispositive.” Because, as the plaintiffs alleged, the calls were placed to promote the film, they were telemarketing “even though the messages never referenced the film.”

As for so-called dual-purpose calls, the 2003 order said the examples in the record would, in most instances, be advertisements. It explained that such calls may ask about a customer’s satisfaction but are “motivated in part by the desire to ultimately sell additional goods or services,” and added: “If the call is intended to offer property, goods, or services for sale either during the call, or in the future (such as in response to a message that provides a toll-free number), that call is an advertisement.” I’d put a satisfaction survey that closes with an upgrade offer in that category.

I’d point a defendant to one limit in the case law. The Aranda court read the FCC’s dual-purpose guidance narrowly. In the court’s view, that guidance addresses commercial calls that mix information with telemarketing, not calls with one commercial and one non-commercial purpose, and “The FCC’s guidance concerning calls made with dual purposes does not control whether the calls were made with or without a commercial purpose.” The landline claims went toward trial on whether the caller acted for itself or as the cruise sellers’ agent.

Do survey rewards or sweepstakes entries make the call marketing?

They can, and I think this is where survey programs most often go wrong. The FCC said in the 2003 order that “Offers for free goods or services that are part of an overall marketing campaign to sell property, goods, or services” are advertising. A reward usable only by buying something is the clearest case.

The Ninth Circuit applied that reasoning to loyalty points in Chesbro v. Best Buy Stores, L.P., reversing summary judgment for Best Buy. According to the court, Best Buy’s recorded calls urged members to redeem reward points that had no use except on more Best Buy purchases. The court held: “Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context. Any additional information provided in the calls does not inoculate them.”

In the free-cruise campaign in Aranda, people who finished the survey and asked about the prize were transferred to a cruise marketer, and the broker that arranged the campaign received “somewhere between $2 and $2.50” from the cruise company “for every call that was transferred.” For the commercial-call exemption, the court concluded that, even if the calls’ main purpose was political, the evidence “would not permit a reasonable jury to find that they did not advertise the commercial availability of defendants’ vacation packages.” Whether the non-commercial and nonprofit exemptions applied stayed open for trial.

Cash or a prize for the respondent is a closer question, and the federal appeals courts have split over it in fax cases. They matter for prerecorded calls because the FCC’s calling rules define an advertisement the same way, though the Do Not Call rules turn on purpose instead. In Fischbein v. Olson Research Group, Inc., the Third Circuit revived suits over faxes offering doctors $150 or $200 to take market research surveys, reasoning that “It is an offer of payment to the recipients that transforms the solicitation of responses to market surveys into advertisements.” The Second Circuit disagreed in Bruce Katz, M.D., P.C. v. Focus Forward, LLC, concluding that “invitations to participate in a survey, without more, are not advertisements under the statute.” And in June 2024, the Fourth Circuit held in Family Health Physical Medicine, LLC v. Pulse8, LLC that a chance to win a gift card for completing a survey “was not enough, by itself,” to make a fax an advertisement. The court noted the complaint didn’t allege the survey was a “disguised sales tool whose completion Pulse8 used to pitch products or collect data for future advertising,” and it expressly left open whether a market research firm’s paid-survey fax is an advertisement. It revived the case on other theories tied to a webinar about the sender’s product.

My view is that the dividing line is what the reward does for the sponsor’s sales. A gift card from a research firm, with no product tie and no transfer to sales, sits far from Chesbro, though that question is unsettled and a plaintiff will cite Fischbein. A discount code, a “free” trip that needs a credit card, or a transfer to sales puts the call inside it.

Does a survey answer give consent for later marketing?

Not by itself. In the same footnote of its 2003 order that addressed pretext surveys, the FCC said that responding to one “does not constitute express permission or establish a business relationship exemption for purposes of a subsequent telephone solicitation.”

I’d flag this for anyone building lead lists from surveys. Autodialed or prerecorded marketing calls need their own consent, and sales calls to Registry numbers need signed written permission or an established business relationship. The scope-of-consent post covers how far consent given for one purpose stretches.

What records show a survey was really a survey?

In my view, the documents that matter most are ordinary business records. I’d start with four.

The research contract and the sponsor’s identity. A survey paid by the completed interview reads differently from one paid by the transferred call. Per-transfer pay like the arrangement described in Aranda is the fact a plaintiff will use to argue the survey existed to feed sales.

What happened to the data. If survey answers never fed a marketing list, system records should show it. If they did, expect a plaintiff to argue a lead-generation purpose.

Every dated script version and the audio for any recorded or AI-voice question. Golan shows why a short message alone won’t settle purpose.

Call counts per number per rolling 30 days, line-type records, and opt-out logs. For landline survey robocalls, I’d treat those as the exemption itself.

When a survey-call claim arrives

1. Freeze the campaign’s records under a litigation hold: dial and text logs for each number, the consent or exemption basis for each, and every script version.
2. Export the opt-out and internal do-not-call entries the survey system captured, with the date each request came in and the date the number was suppressed.
3. Pull Registry scrub records and their version dates for any number that later got a sales call, an offer, or a transfer.
4. Collect the research sponsor agreement, vendor and panel contracts, the reward or prize terms, and the audio files for recorded or AI-voice questions.
5. Bring in counsel before anyone replies to the demand, calls the claimant back, or offers a gift card or payment.

The firm’s TCPA defense lawyers page summarizes how claims involving survey and market research calls are defended.

Survey call questions from businesses

Can we send customer satisfaction survey texts without written consent?

Usually, if it sells nothing. Federal rules require written consent for autodialed or prerecorded telemarketing to cell phones, not for informational messages. Under § 227(b), a pure survey text needs prior express consent if it’s sent with an autodialer, and a platform that only sends to a stored list has a good argument it isn’t one under Duguid. The risk is what the text adds: a discount code or a link to a sales page can turn a survey into telemarketing.

Does the three-call limit apply to live-agent survey calls?

No. The cap applies only to artificial or prerecorded voice calls made under the landline exemptions, and the FCC noted in its 2020 order that callers can use a live agent instead. A live call that sells nothing is also outside the Do Not Call and calling-hours rules, though the cell phone rules still apply if it’s autodialed.

Can a survey ask whether the person wants to hear an offer?

I wouldn’t do it. The FCC said in its 2003 order that asking a consumer to “press 1” for more information “does not constitute the prior consent necessary to deliver the message in the first place,” because the request is part of the telemarketing call. Keep offers out of the survey, and get any consent marketing calls need separately.

Defending claims over survey calls and texts

If your company is accused of disguising sales calls as surveys, the script history and how the program was paid for will often decide the purpose question. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving survey and market research calls. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as in effect on February 7, 2025. The FCC’s 2003 TCPA order is FCC 03-153, 18 FCC Rcd 14014 (2003). The TRACED Act exemptions order is FCC 20-186 (released December 30, 2020), published at 86 Fed. Reg. 11443 (Feb. 25, 2021), with its effective date announced at 88 Fed. Reg. 3668 (Jan. 20, 2023). The AI voice declaratory ruling is FCC 24-17 (released February 8, 2024). The revised opt-out deadline appears at 89 Fed. Reg. 15756 (Mar. 5, 2024), with its effective date at 89 Fed. Reg. 82518 (Oct. 11, 2024).

The court decisions are Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012); Golan v. Veritas Entertainment, LLC, 788 F.3d 814 (8th Cir. 2015); Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020); Bruce Katz, M.D., P.C. v. Focus Forward, LLC, 22 F.4th 368 (2d Cir. 2022); Family Health Physical Medicine, LLC v. Pulse8, LLC, 105 F.4th 567 (4th Cir. 2024); and Aranda v. Caribbean Cruise Line, Inc., 179 F. Supp. 3d 817 (N.D. Ill. 2016).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 7, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.