Pollsters fret looming robocall restrictions

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The Federal Communications Commission is catching flak from pollsters and high-profile political handicappers like Nate Silver over a new proposal to crack down on robocalls.

The groups warn that restrictions to be voted on this month could increase roadblocks for those who conduct polls and survey research — two sectors that already complain that existing restrictions put an undue burden on their work.

Silver, who founded FiveThirtyEight.com and has been a major player in election handicapping, railed against the FCC's new proposal in a blog post last week.

With a number of factors already putting stress on the polling industry, he mockingly said the FCC should stick to regulating things like Janet Jackson's performance at the 2004 Super Bowl.  

"And the FCC probably ought to go back to policing 'wardrobe malfunctions' and not making pollsters’ jobs any harder. Without accurate polling, government may end up losing its most powerful tool to know what the people who elect it really think," he said in his post.

The Marketing Research Association (MRA) has said the new FCC proposal could "lead to the indiscriminate blocking out of most telephone calls from good actors," like researchers and pollsters.

The trade group and Nielsen representatives met with members of GOP FCC Commissioner Ajit Pai's staff last week to plead their case.  Nielsen also had phone calls with the offices of Democratic commissioners Jessica Rosenworcel and Mignon Clyburn, as well as the deputy for the FCC's Consumer and Governmental Affairs Bureau.

There are still unknowns about the FCC's new proposal and how broadly it will touch the polling industry. The rules related to robocalls are often confusing, due to the differing restrictions that apply to landline and mobile phones.

The FCC has framed the plan as a win for consumers, arguing the new proposal would clarify popular restrictions against telemarketers. The commission notes that the top consumer complaint at the agency is unwanted or intrusive calls.

"Consumers have the right to control the calls and texts they receive, and the FCC is moving to enforce those rights and protect consumers against robocalls, spam texts, and telemarketing," FCC Chairman Tom Wheeler said in a blog post last month.

One of the largest proposals in the new ruling would allow telephone companies to offer call-blocking technology to their customers, though it would not be required. This technology is meant to stop robocalls before they ever reach a customer’s phone.

MRA director of government affairs Howard Feinberg recently warned that the best-case scenario is that the technology "will block out most autodialed research calls."

The trade group has also warned that the FCC's expanded definition of autodialers — which are already banned from calling cellphones — will outlaw a work around, though it is unclear how many polling companies use that technique. Other concerns center on stricter consent restrictions to be called on a mobile phone by a person using an autodialer.

Robocalling is a broad term that can include pollsters using autodialers, depending on what kind of phone you are calling. On a landline phone, current rules allow pollsters to use autodialers or prerecorded prompts. On mobile phones, however, all autodialed calls or prerecorded calls are barred, unless a person gives their consent. There is no exception for pollsters.

The FCC would not say explicitly whether the blocking technology would be allowed to restrict autodialed polling calls to landlines, which are otherwise above board and legal.

The FCC hinted the answer is "yes." The commission noted phone companies could allow customers to block any unwanted call. The FCC noted that with some of the current technology, however, there must be a large number of complaints before a call is blocked.

Pollsters have been wary of the new restrictions. But they have also used the debate to lament the old restrictions that bar them from calling cellphones with autodialers, which can churn through numbers faster than punching them in manually.

Those rules increase the cost and time that pollsters must spend to get an accurate sample. That inclusion of mobile phone interviews has become increasingly important as more and more people turn away from landlines.  

At the beginning of the year, Pew Research said it would being including a larger share of cellphone calls in its polls to reflect the changes. One recent Pew survey was made up of 975 cellphone interviews compared to 525 landline interviews. Another recent poll by CNN interviewed 404 respondents on cellphones and 621 people on landlines.

In his blog, Silver noted polling has become increasingly harder because of other factors like dwindling response rates. He said the FCC's proposal could make the state of polling worse.

Silver's focus has been on political analysis, but he said other industries rely on polling as well.

"The concern isn’t solely with pre-election 'horse race' polls, however. Although they receive a lot of attention, they represent a small fraction of what the public opinion industry does," Silver said, noting that government agencies, economists and commercial groups like Nielsen rely on phone surveys.