HUFFPOLLSTER: Gallup Settles $12 Million Lawsuit Over Calls To Cell Phones

Company says it never 'auto-dialed' anyone on a cell phone.
BERTRAND GUAY via Getty Images

Gallup pays millions to settle a lawsuit it says is spurious. Clinton leads among Democratic activists; they love Bernie Sanders but don't think he can win. And politicos fret about "Trumped up polls." This is HuffPollster for Friday, July 31, 2015.

GALLUP PAYS $12 MILLION TO SETTLE TCPA LAWSUIT - Fred Bergen: "A settlement agreement has been reached in a class action lawsuit that alleged Gallup violated the Telephone Consumer Protection Act (TCPA) by calling cellular telephones using an automatic telephone dialing system (autodialer) without prior express consent. Gallup has agreed to provide a $12 million dollar settlement fund. Gallup denies any violation or that it did anything wrong. The law suit was filed by Kurt Solo on behalf of himself and a class that consists of all persons of the United States to whom Gallup placed a call to that person’s cell phone using an automatic telephone dialing system during the four years prior to the filing of the complaint....Solo alleged that during the month of July 2013, he began receiving unsolicited calls on his cell phone. He claimed that: when returning the calls, an automated voice announced that the call had been made by Gallup for the purposes of 'polling' him on political and social issues; the calls were made using an automatic telephone dialing system; and he had never had any previous contact with Gallup." [Marketing Research Association]

Gallup says it didn't autodial anyone - "Gallup has not, and will never, auto-dial a respondent on a cell phone," Gallup's general counsel Steve O'Brien tells HuffPollster. "Gallup is a victim 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."

Solo's original complaint includes no allegation that Gallup placed automated, recorded-voice calls to wireless phones, only that its calls to cell phones involved "an automatic telephone dialing system."

The definition of "automatic telephone dialing system," or "autodialer" is at the heart of the ongoing controversy affecting the polling industry. Lawmakers that passed the original TCPA autodialer provision intended to shield mobile phone users (who paid by the minute for incoming calls) from an explosion of automated, recorded voice calls (commonly referred to as "robocalls"). Over the years, however, The FCC has "progressively expanded" their interpretation of automatic dialing from the original automated, recorded voice calls "to cover just about all dialing technology that doesn’t involve manual hand-dialing (fingers hitting keys or the dial of a phone)," as Howard Fienberg, director of government affairs for the Market Research Association, explained in a recent summary.

The Gallup settlement appears to confirm the darkest fears of the polling world, especially given the FCC's recent toughening of the TCPA restrictions that defines autodialer even more broadly as "any technology with the capacity to dial random or sequential numbers."

"After this order," Republican FCC Commissioner Ajit Pai argued in casting a "no" vote, "each and every smartphone, tablet, VoIP phone, calling app, texting app, pretty much any phone that’s not a rotary dial phone will be an automatic telephone dialing system."

"[T]rial lawyers have discovered that survey, opinion and marketing research can be a lucrative target for TCPA class action suits," MRA's Fienberg warned in May. "These new rules from the FCC will be an even bigger boon to such frivolous legal assaults."

FCC Chair Wheeler says Congressional tele-town halls are illegal under TCPA. - Shawn Zeller: "The Federal Communications Commission has effectively banned the tele-town hall, a common method of reaching out to constituents that members of Congress have used for years, the agency's chairman, Tom Wheeler, told the House Energy and Commerce Communications and Technology Subcommittee on Tuesday. 'Those are prohibited and your contention is always have been?' asked the subcommittee chairman, Republican Greg Walden of Oregon, apparently surprised by the revelation. 'Yes, sir,' responded Wheeler, arguing that the statute governing such calls was very clear. 'Wow, that's interesting,' said Walden. 'That will be news to a lot of people.'" [Roll Call]

FCC deputy press secretary clears up "confusion"- In an email to the Huffington Post Will Wiquist responds to the Roll Call article: "The Commission’s recent robocall clarifications didn’t impose new restrictions on tele-town halls or Congressional outreach to constituents. Since 1991, informational calls to landlines have been permitted without restriction, while such calls to mobile phones have required consumer consent. As long as vendors for tele-town halls continue to adhere to the decades-old rules, use of these services should pose no issue."

HUFFPOST/YOUGOV ACTIVIST SURVEY, PART II: DEMOCRATS LOVE SANDERS, JUST DON'T THINK HE CAN WIN - HuffPollster: "Unlike the grassroots Republican activists, who are still making up their minds, their Democratic counterparts are mostly decided about the 2016 primary. Nearly three-quarters of those surveyed say they already have a good idea whom they'll vote for. As of early July, that's mainly former Secretary of State Hillary Clinton, who has a commanding lead among her party's faithful. Sen. Bernie Sanders (I-Vt.) has rapidly emerged as Clinton's most serious rival. The Democratic activists surveyed are significantly more liberal than the party as a whole -- exactly the kind of people who've rallied around Sanders as the de facto alternative to Clinton. But most of the activists see Clinton as the Democrats' only viable option for winning the presidency." [HuffPost]


'How Bernie Sanders is like Sarah Palin' - John Sides: "[L]et’s take a trip back to August 2011. The good folks at Pollster did a very similar poll of Republican party leaders in Iowa, New Hampshire and South Carolina. Back then, Sarah Palin was appealing to these leaders in key respects. Most notably, 76 percent said that they agreed with Palin’s stands on issues. But when asked whether she could beat President Obama in 2012, only 37 percent thought so.In other words, Sanders is now like Palin was then: popular with the base, but seen as unelectable." [WashPost]

Why we survey activists - Hans Noel: "The focus of the primaries is on rank-and-file voters, but political elites have more influence than is often appreciated. This is the argument of The Party Decides, a book I co-wrote with Marty Cohen, David Karol and John Zaller on presidential nominations. It is also the reasoning behind the Huffington Post's surveys of political activists last week. The political activists those surveys captured are not quite the political elites whose endorsement we analyzed in the book, but the spirit is the same....What's more, the HuffPo survey didn't just ask who respondents liked. It asked their second choices, as well as whether each candidate were acceptable to the respondent or not. This is also part of our argument. The ideal candidate is not necessarily anyone's first choice, but someone acceptable to all factions in the party. Now we have a direct measure of that." [HuffPost]

STOP WORRYING ABOUT THOSE "TRUMPED UP" POLLS - Patrick Ruffini: "People think that the problem with media polling in the Republican primary is that we’re deciding who participates in debates based on surveys with 200 to 300 respondents that carry an extremely high margin of error. That’s not totally right. It’s that the people being surveyed by media polls bear only a glancing resemblance to the people who will vote in next year’s Republican primaries and caucuses, making it more likely that the polls as a whole are systematically off." [Medium]

'Likely voters' like Trump less - Even among those media polls, there's a notable difference between those who survey all registered voters, and those who make an effort to identify people who are likely to participate in primaries. HuffPost Pollster's national average of GOP primary candidates gives Trump an average of nearly 26 percent with registered voters; among likely voters, that falls to 18 percent. [HuffPost]

Pollsters say it's a bad idea to use polls to decide who gets to be on debate stage - Nora Kelly and Brian Resnick: "Republican presidential hopefuls are closing in on a tight race: not for their party's nomination, but for the chance to advocate for their party's nomination during next week's first 2016 debate. Whether they'll get that chance depends entirely on how they've performed in recent national polls—a metric that some pollsters are wary of employing for such a significant event, especially as voters are only just starting to pay attention to the candidates now crisscrossing the country looking for their vote" [National Journal]

'Total confusion' at Fox over poll inclusion criteria - Gabriel Sherman: "Inside Fox, the debate is generating controversy among Ailes’s senior ranks. 'There’s total confusion about all of it. The Second Floor is making it up as they go along,; one Fox personality told me, referring to Ailes’s executive suite. According to sources, Fox executives are still undecided about which polls to use and who will be allowed on the stage. This week, for example, Fox amended an earlier rule that a candidate had to be polling above one percent to participate after it became clear that Lindsey Graham, Carly Fiorina, and George Pataki wouldn’t even make the 5 p.m. event." [NYMag]

HOW PUBLIC ATTITUDE ON BIRTH CONTROL HAS SHIFTED OVER TIME- Kathleen Weldon: "Fifty years ago, just five years after the FDA approved the first birth control pill, the Supreme Court struck down a Connecticut state law that prohibited the use of "any drug, medicinal article, or instrument for the purpose of preventing conception," thereby making birth control legal nationwide for married couples. Public opinion was on the Court's side in Griswold v. Connecticut, but public controversies over contraceptives have continued to this day. A history of public opinion about birth control, from the Roper Center for Public Opinion Research Archive…" [HuffPost]

INSIDE TWO MAINSTREAM MEDIA POLLING OPERATIONS - New York Times: " We’re planning many more polls about a range of political, economic and social issues this year. We envision relatively few surveys designed to measure the Trump phenomenon or handicap the Republican and Democratic primary campaigns. For now, we’ll leave the horse race polling largely to others." [NYT]

Washington Post: "Every few months, the Washington Post (in partnership with ABC News) offers the world a brand new bit of insight. This week, it was that Donald Trump leads the Republican field seeking the party's presidential nomination, a result that likely prompted more than a few people to wonder, How did that happen? We are here to answer that question in the most literal way possible." [WashPost]

This Week's Polls

-Few Americans expect President Obama to close Guantanamo Bay. [HuffPost]

-Donald Trump leads the GOP national primary, but most Republican voters say they still see the field as wide open. [CNN]

-Trump leads the Republican presidential race in New Hampshire and trails Bush in Iowa. [NBC News]

-Bernie Sanders beats Donald Trump in a possible matchup. [CNN, Quinnipiac]

-A majority of Jewish-Americans want Congress to approve the Iran deal. [WashPost]

-Another survey finds most Americans overall against the Iran deal. [CNN]

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THIS WEEK'S 'OUTLIERS' - Links to the best of news at the intersection of polling, politics and political data:

-The Upshot chart who is expected to participate in the Fox News debate August 6th. [NYT]

-Marco Rubio is the candidate viewed most favorably among "very conservative" Republicans. [Gallup]

-Lynn Vavreck explains how and why endorsements matter. [NYT]

-Nate Silver says Donald Trump is the Nickelback of Republican candidates. [538]

-Nate Cohn expects Trump's support to fall, just not right away. [NYT]

-Republican operatives insist that Trump's poll numbers are a mirage. [Politico]

-Jennifer Agiesta sees a disgruntled GOP electorate behind the Trump bump. [CNN]

-Philip Bump examines which candidates have lost as Trump has gained. [WashPost]

-The Winston Group compiles a list of the kind of questions asked in previous debates. [WashPost, Winston Group]

-Brendan Nyhan finds no data to support claims that Clinton's "favorability problem" will cripple her presidential bid. [NYT]

-Ken Goldstein notes the contradictions between recent national and state-level 2016 general election horse race polls. [Bloomberg]

-Mark DiCamillo remembers legendary California pollster Mervin Field. [SacBee]