WASHINGTON-- Federal Communications Commission Chair Tom Wheeler reaffirmed many pollsters' fears last week that tighter regulations could seriously damage their ability to conduct surveys, making comments that one poll operator characterized as "cavalier about putting pollsters out of business."
Wheeler voted in June for rules that double down on restrictions on "autodialing" technology used to reach cell phone users. Pollsters have expressed concern that the new interpretation will lead to less accurate results, higher costs and an increased possibility of lawsuits against survey researchers.
The exact definition of what an "autodialer" is lies at the center of the controversy. The Telephone Consumer Protection Act, passed by Congress and signed into law in 1991, prohibited the use of an “automatic telephone dialing system” to contact cell phone users without “express prior consent” from the party being called. Their intent was to protect early cell phone users from telemarketers, who used automatic dialers to direct recorded sales pitches at every working number in a given geographic area (as famously parodied on The Simpsons in 1996). Since early cell phone users paid hefty charges for incoming minutes, these calls were more than just an annoyance.
Researchers have never relied on such "autodialer" technology to select their random samples, but over the last three decades, survey conductors have increasingly made use of automation machines to dial numbers. Most pollsters have tried to comply with the rule by avoiding calls to cell phones with completely automated surveys or technology that dials multiple numbers without an interviewer listening as an individual line rings, but there has been considerable uncertainty over how much automation is allowed under the law. The FCC's latest decision to reaffirm the rule has left many opponents concerned that the interpretation is so broad that only a rotary phone could be used to dial cell phones now, and pollsters say they're unsure how to contact cell phones in a legal manner anymore.
Many pollsters are worried that the small ruling will have outsized impact, making it difficult to gauge public opinion on a wide range of issues. It could "create a political system where politicians can do whatever they want without knowing what the public thinks," Mollyann Brodie, president of the American Association for Public Opinion Research, told The Huffington Post. "It should be of grave concern to both our political leaders and the American public at large."
"What we hear so far is that the new comments and interpretation of the rules coming from the FCC have created a lot more uncertainty, rather than clarity, about the research environment for reaching people on their cell phones," Brodie said. She added that the rules have left polling organizations "more confused about what they can and cannot do to continue conducting high-quality research."
Greg Walden (R-Ore.), the chair of the House Subcommittee on Communications and Technology, raised the issue with Wheeler during a committee hearing last Tuesday. But when Walden brought up that many people have only a cell phone and it's not clear how pollsters can reach them legally, Wheeler's comments implied that surveys of mobile phones have already become obsolete.
"I know you spoke out and said, basically, pollsters could go, you know, the way of blacksmiths," Walden said.
"Well, they have been, right?" Wheeler quipped.
Walden continued, asking again if pollsters would be put "out of business" by the latest FCC restrictions. "How do you do a random sample on a poll, if you can't randomly sample and dial?" he said.
Wheeler's response left pollsters scratching their heads: "So I once sat down with [Democratic pollster] Peter Hart to write a piece exactly on that insofar as wireless, because you can't have random sam[ple]," he said.
Hart did not remember the article when contacted by HuffPost for comment.
"Polling robocalls to mobile phones have always required consumer consent," FCC Press Secretary Will Wiquist said when asked to clarify Wheeler's comments. "In addition, the rulings simply reaffirmed the definition in the 1991 statute that autodialers are 'equipment which have the capacity' to autodial."
Yet those restrictions have not legally barred pollsters from dialing cell phones for a random sample, as Brodie confirmed. "It is not always easy and it is getting more expensive, but it is certainly doable and, in fact, necessary for representative telephone research," she said.
"This act was as originally targeted at abusive illegal telemarketing. The FCC has blown this to way beyond anyone's conception," said Howard Fienberg, the director of government affairs for the Marketing Research Association. In a statement, he added that he hopes the concerns expressed by some members of Congress translate into "an opportunity to finally fix" the rules through new legislation.
Steve Koczela, president of the MassINC. survey research firm, conveyed frustration with Wheeler's comments. "It would be one thing if they didn’t understand the impact they are having both on the process of public opinion research and on the business of survey research. But Chairman Wheeler’s comments clearly show they do understand, and just don’t care."
Pollsters' greatest concern was further realized last week when news broke that Gallup settled a $12 million class action lawsuit over its alleged violation of the Telephone Consumer Protection Act by using autodialers without expressed prior consent.
The company denied any wrongdoing, and told HuffPost that the lawsuit is a result of an "ill-defined" law that "penalizes companies based upon the 'capacity' of the call-center equipment they own rather than whether the equipment was actually used to auto-dial."