Should telephone companies be allowed to block certain calls -- and would some of those calls be survey, opinion and marketing research calls?
On January 23, the Marketing Research Association (MRA) filed comments with the Federal Communications Commission (FCC) regarding what the National Association of Attorneys General (NAAG) called phone companies' "legal ability to implement call-blocking technology."
MRA asked that the FCC "reject such call-blocking technologies because they go far beyond NAAG’s stated goals of protecting consumers from illegal telemarketing and will potentially block all manner of non-telemarketing telephone calls, including calls for survey, opinion and marketing research purposes." The call-blocking technologies that won the Federal Trade Commission (FTC) robocall contest using algorithms, MRA said, that "detect robocalls and hang up on them, with no reassurance that the systems proposed would differentiate between legal and illegal. Moreover, it is not clear that the systems would differentiate between robocalls and calls using an automated telephone dialing system (ATDS)," which is standard technology in the research profession. MRA also raised concerns about the "rates of false positives (calls that are blocked that should not have been) from existing call-blocking technology," which no set measurement standard, nor any publicly-available data.
"NAAG, call-blocking technology providers, and some policymakers are thus overreaching or misstating by equating 'unwanted' calls with 'telemarketing' calls," according to MRA.
These Attorneys General seem intent on foiling "an undefined bucket of 'unwanted' calls from good actors in order to help protect consumers from the bad actors." MRA instead supports the existing goals of the FTC and FCC "to deter and punish the bad actors: purveyors of illegal telemarketing calls and illegal robocalls."
Read MRA's comments on the FCC website, and below:
Re: CG Docket No. 02-278, WC Docket No. 07-135
The National Association of Attorneys General (“NAAG”) has petitioned the Federal Communication Commission (“the Commission”) for the Commission’s formal opinions “regarding telephone carrier’s legal ability to implement call-blocking technology.”
According to the NAAG letter, “law enforcement cannot fight this battle alone” against “illegal telemarketing,” and references “call-blocking technology like NoMoRobo, Call Control and Telemarketing Guard,” which it calls “the first major advancement towards a solution.” NAAG references a July 2013 Senate Subcommittee on Consumer Protection, Product Safety, and Insurance hearing in which representatives from US Telecom Association and CTIA - The Wireless Association (CTIA) testified that “legal barriers prevent carriers from implementing advanced call-blocking technology to reduce the number of unwanted telemarketing calls.”
In response to the telecommunications industry’s “reluctance to embrace call-blocking technology,” NAAG wants to know what legal and regulatory prohibitions exist “to prevent telephone carriers from “implementing call-blocking technology,” if “the answer” changes should a customer “affirmatively ‘opt into’ the call-blocking technology,” if carriers can legally block certain types of calls (e.g., telemarketing calls) if technology is able to identify incoming calls as originating or probably originating from a telemarketer,” and “upon what basis” the Commission claims “that telephone carriers may not ‘block, choke, reduce or restrict telecommunications traffic in any way.”
The Marketing Research Association (“MRA”), a non-profit national membership association, is the leading and largest association of the survey, opinion and marketing research profession in the United States. MRA promotes, advocates and protects the integrity of the research profession and strives to improve research participation and quality.
MRA requests that the Commission reject such call-blocking technologies because they go far beyond NAAG’s stated goals of protecting consumers from illegal telemarketing and will potentially block all manner of non-telemarketing telephone calls, including calls for survey, opinion and marketing research purposes.
II. Misunderstanding the difference between “telemarketing” calls and “unwanted” calls
In the Commission’s request for comments, the agency stated that is “has long prohibited call blocking in particular contexts pursuant to its authority under the Communications Act of 1934, as amended,” but that it “has not directly held that blocking calls upon customer request is unlawful.”
However, the Commission gets wrong one of its most important questions posed in the request for comments. In asking, “How effective are the different services in blocking calls that consumers do not want,” the Commission mistakes an equivalency between unwanted calls and telemarketing calls.
NAAG explicitly contacted the Commission “on behalf of the millions of Americans regularly receiving unwanted and harassing telemarketing calls, and hopes that “we can all work cooperatively to find a solution to the unwanted telemarketing problem in the United States.”
Note that, just like the original sponsors of the 1991 Telephone Consumer Protection Act (“TCPA”), NAAG has justified action based on the threat of telemarketing, not just “unwanted” calls. The Federal Trade Commission (“FTC”) prize contest was for the “Best Overall Solution to block illegal robocalls,” not the best solution to block unwanted calls.
Telemarketing calls have a legal definition, legal restrictions, and high court rulings indicating that such calls can be curtailed or forbidden, such as through the national Do Not Call Registry and the Telemarketing Sales Rule (TSR). There is no legal definition for calls that are simply unwanted. There are also dozens of petitions awaiting the Commission’s attention questioning the application of the TCPA to restrict non-telemarketing calls.
Unfortunately, the call-blocking technology under discussion goes far beyond mere illegal telemarketing calls, or illegal robocalls. The winners of the FTC contest focused on algorithms to detect robocalls and hang up on them, with no reassurance that the systems proposed would differentiate between legal and illegal. Moreover, it is not clear that the systems would differentiate between robocalls and calls using an automated telephone dialing system (ATDS), which is standard technology (including in the survey, opinion and marketing research profession). The rates of false positives (calls that are blocked that should not have been) from existing call-blocking technology have not been shared, (nor, absent clear definitions, would such statistics be meaningful).
NAAG, call-blocking technology providers, and some policymakers are thus overreaching or misstating by equating “unwanted” calls with “telemarketing” calls.
There is no demonstrable harm from survey, opinion and marketing research calls. Research calls also provides significant benefit to consumers and the broader public. It is unlikely that all potential users of call-blocking technology would wish to be disenfranchised from research studies (which serve as an ombudsman for the American public). The federal government goes to great lengths to ensure that all citizens are represented equally in the decennial Census. So why should the Commission allow coverage bias and make users of this technology less likely to be represented? The Commission has a responsibility to avert such outcomes.
The letter from the NAAG indicates that their broader intent is to foil an undefined bucket of “unwanted” calls from good actors in order to help protect consumers from the bad actors. However, MRA supports the existing goals of the FTC and the Commission to deter and punish the bad actors: purveyors of illegal telemarketing calls and illegal robocalls. The call-blocking technology discussed in the NAAG letter would not specifically help achieve that goal.
 National Association of Attorneys General, Petition for Declaratory Ruling, CG Docket No. 02-278 (filed September 9, 2014). (FCC request for comment at: http://apps.fcc.gov/ecfs/comment/view?id=60000984456 ).
 The research profession is a multi-billion dollar worldwide industry, comprised of pollsters and government, public opinion, academic and goods and services researchers, whose members range from large multinational corporations and small businesses to academic institutes and non-profit organizations.
 Survey, opinion and marketing research is the scientific process of gathering, measuring and analyzing public opinion and behavior. On behalf of their clients – including the federal government (the world’s largest purchaser of research), media, political campaigns, educators and commercial and non-profit entities – researchers design studies and collect and analyze opinions and behaviors from a small but statistically-balanced sample of the public to determine their preferences regarding products, services, issues, candidates and other topics. The scope of the survey, opinion and marketing research profession is nearly infinite, including multi-billion dollar efforts to understand public sentiments and behavior toward food, health care, transportation, media and information technology, just to scratch the surface.
 The initial sponsor of the Senate bill, Senator Fritz Hollings (D-SC), stated that, “This bill is purely targeted at those calls that are the source of the tremendous amount of consumer complaints at the FCC and at the State commissions around the country – the telemarketing calls placed to the home.” (137 Congressional Record S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings)). Likewise, Senator Larry Pressler (R-SD) stated that, “This legislation is the result of a House and Senate conference on comprehensive telemarketing legislation… [p]eople are increasingly upset over this invasion of their privacy by unrestricted telemarketing… [t]he primary purpose of this legislation is to develop the necessary ground rules for cost-effective protection of consumers from unwanted telephone solicitations.” (137 Congressional Record 518317 (daily ed. Nov. 26, 1991) (statement of Sen. Pressler)).
 “FTC Announces Robocall Challenge Winners.” April 2, 2013. http://www.ftc.gov/news-events/press-releases/2013/04/ftc-announces-robocall-challenge-winners
 Such as MRA’s comments to the Commission on the RTI Petition Regarding the TCPA and Government Surveys, December 23, 2014, which requests an exclusion for all survey, opinion and marketing research calls to cell phones using an autodialer: http://apps.fcc.gov/ecfs/comment/view?id=60001006447
 Any prospective harm from cell phone users receiving possibly unwanted research calls is likely to be very small:
- There are far fewer legitimate research surveys than there are potential telemarketing calls (legal or otherwise). The expense of conducting research and the ongoing innovations in statistical sampling limit the potential number of telecommunications subscribers who may be called for research studies.
- Since common research practice entails an introduction that explains the purpose of the call, research participants can make a quick decision –usually within a minute – as to whether or not they want to participate.
- Continuing focus of consumer complaints with regard to unwanted calls are commercial or political robocalls, not research calls.
- Research profession ethics require research companies and organizations to maintain and honor their own internal do-not-contact lists. See the MRA Code of Marketing Research Standards: “#12. When collecting data, maintain an internal do-not-contact database as a complement to requests made by respondents for future communications and participation in marketing research projects.”
- As far as the telecommunications subscriber is concerned, technology makes automated dialing virtually indistinguishable from manual dialing – the average ear will never notice the difference.