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22–980 2017

MODERNIZING THE TELEPHONE CONSUMER 

PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 22, 2016 

Serial No. 114–172 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

ROBERT E. LATTA, Ohio 

Vice Chairman 

JOHN SHIMKUS, Illinois 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

MICHAEL F. DOYLE, Pennsylvania 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

JERRY MCNERNEY, California 

BEN RAY LUJA ́ N, New Mexico 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 4 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 6 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 60 

WITNESSES

Michelle Turano, Vice President, Public Policy and Government Affairs, 

Wellcare Health Plans ......................................................................................... 8 

Prepared statement .......................................................................................... 11 

Answers to submitted questions ...................................................................... 112 

Shaun Mock, Chief Financial Officer, Snapping Shoals Electric Membership 

Corporation ........................................................................................................... 19 

Prepared statement .......................................................................................... 21 

Answers to submitted questions ...................................................................... 116 

Spencer Weber Waller, Professor and Director, Institute for Consumer Antitrust Studies, Loyola University Chicago .......................................................... 29 

Prepared statement .......................................................................................... 31 

Answers to submitted questions ...................................................................... 122 

Richard Shockey, Principal, Shockey Consulting .................................................. 35 

Prepared statement .......................................................................................... 36 

Answers to submitted questions ...................................................................... 127 

SUBMITTED MATERIAL

Statement of Indiana Attorney General Greg Zoeller, submitted by Mr. Walden ......................................................................................................................... 62

Statement of the National Association of Federal Credit Unions, submitted 

by Mr. Walden ...................................................................................................... 64 

Statement of several non-profit consumer groups, submitted by Ms. Eshoo ...... 74 

Statement of several banking associations, submitted by Mr. Walden ...............

Article entitled, ‘‘The Telephone Consumer Protection Act of 1991: Adapting 

Consumer Protection to Changing Technology,’’ Loyola Consumer Law Review, 2014, submitted by Mr. Walden 1 .............................................................. 62 

Statement of the Electronic Privacy Information Center, submitted by Ms. 

Eshoo ..................................................................................................................... 89 

Statement of America’s Health Insurance Plans, submitted by Mr. Latta ........ 93 

Statement of the Credit Union National Association, submitted by Mr. Latta . 107 

1 Available at: http://docs.house.gov/meetings/IF/IF16/20160922/105351/ 

HHRG-114-IF16-20160922-SD008.pdf. 

(1) 

MODERNIZING THE TELEPHONE CONSUMER 

PROTECTION ACT 

SEPTEMBER 22, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 11:00 a.m., room 

2322, Rayburn House Office Building, Hon. Greg Walden (chairman of the subcommittee) presiding. 

Present: Representatives Walden, Latta, Shimkus, Blackburn, 

Lance, Guthrie, Pompeo, Bilirakis, Long, Collins, Eshoo, Doyle, 

Welch, Clarke, McNerney, and Pallone (ex officio). 

Also Present: Representative Schakowsky. 

Staff Present: Rebecca Card, Assistant Press Secretary; Gene 

Fullano, Detailee, Telecom; Kelsey Guyselman, Counsel, Telecom; 

Grace Koh, Counsel, Telecom; David Redl, Chief Counsel, Telecom; 

Charlotte Savercool, Professional Staff, Communications and Technology; Dan Schneider, Press Secretary; Gregory Watson, Legislative Clerk, Communications and Technology; Jeff Carroll, Minority 

Staff Director; David Goldman, Minority Chief Counsel, Communications and Technology; Elizabeth Letter, Minority Professional 

Staff Member; Jerry Leverich, Minority Counsel; Lori Maarjberg, 

Minority FCC Detailee; Dan Miller, Minority Staff Assistant; Matt 

Schumacher, Minority Press Assistant; and Andrew Souvall, Minority Director of Communications, Outreach and Member Services. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. We will call to order the subcommittee on Communications and Technology and welcome our witnesses here today. 

We look forward to your participation in this hearing. 

We are here today to talk about modernizing the Telephone Consumer Protection laws. As you all know, it has been 25 years, 25 

years, quarter of a century since Congress passed the Telephone 

Consumer Protection Act. And I don’t have to tell you the world 

has changed pretty dramatically in that time period. Back in ’91, 

virtually everybody had a landline, and that is what they used to 

call each other on. Today, half of U.S. households or thereabouts 

have become wireless-only, eliminating their landline phones entirely. And there are more cell phones than people in the United 

States. 

2 

Current law is not reflective of these incredible technological 

changes in our culture. Despite an extraordinary number of lawsuits over the years, calls and texts from bad actors continue to 

happen. Clearly, this approach isn’t a deterrent to those who place 

harassing, malicious calls. We all share the goal of preventing 

harmful phone calls, but it is increasingly clear that the law is outdated and, in many cases, counterproductive. We will hear about 

that today from our witnesses. 

The attempts to strengthen the TCPA rules have actually resulted in a decline in legitimate informational calls that consumers 

want and need. The FCC has granted narrow exceptions to specific 

industries in attempts to clear up ongoing uncertainty, but the 

number of petitions still pending before the Commission demonstrate that it is time to examine how effective this approach has 

been. 

Industries across the board have real needs to communicate with 

their customers in a positive and beneficial way, and today we will 

hear from those whose daily operations have been impacted by this 

25-year-old law. We have a public utility co-op from Georgia that 

needs to inform their customers of neighborhood tree maintenance, 

for example, and ways to reduce their energy footprint during peak 

energy consumption periods. 

We will also hear from a managed health care provider that is 

seeking clarification to be able to provide critical information to patients to help lower the cost of their health care. And these folks, 

like many others, struggle with how to serve the needs of the consumers and the economy with the lack of clarity in the current law. 

I heard from a staffing company that operates in Oregon and in 

my district that connects blue-collar workers to temporary, shortterm job opportunities. It used to be these workers would have to 

sit around the waiting room all day waiting to hear if a job that 

met their skill set was available. The company figured a way to use 

technology to improve the lives of these people, the company instead used text messages to communicate with workers when a job 

that matched their skill set is available. That gave the people looking for the jobs the opportunity to continue with the rest of their 

lives rather than sitting around a waiting room, while still finding 

the chance to work, which sounds great and efficient and kind of 

the modernization of the workplace we all expect today. 

Unfortunately, the 25-year-old law, TCPA, they were smacked 

with a lawsuit for their efforts. For a business like this, a massive 

class-action lawsuit could actually mean bankruptcy. 

So I think we can all agree there is a big difference between the 

call fraudulently purporting to be the IRS and a legitimate reminder from the doctor’s office of an upcoming appointment or a 

job agency of a temporary job now available. This is the critical distinction we need to recognize in order to strike the correct balance. 

How can we protect consumers from the harassing, spoofed calls 

they do not want to receive—none of us do—while at the same time 

ensuring they do receive the legitimate calls that improve quality 

of life? What are the solutions out there that can be used to determine the differences, and are there changes to the law that would 

actually help consumers? 

3 

I want to thank my Democratic colleagues for requesting this 

hearing and all of our members for the commitment to a productive 

conversation about taking a look at a 25-year-old law. 

Just yesterday, the full committee passed the Anti-Spoofing Act 

in a bipartisan manner, legislation prohibits bad actors from deliberately manipulating a text message number for illegal purposes. 

Spoofing is a major component of the robocall problem, but just one 

piece of this complicated puzzle. There is no silver bullet here to 

solve the problem of unwanted calls, but if there are legislative 

changes that will protect our constituents, we owe it to them to 

make every effort to mitigate the problem. So I hope the momentum from our accomplishments yesterday can carry on to our efforts today to work toward the shared goal of protecting consumers 

from illegal phone calls. 

We have a unique set of perspectives here today that I hope will 

guide us through a productive discussion. From a professor who 

has studied the law extensively, to a couple of businesses concerned 

about violating the law while trying to providing their services, and 

those who have been developing technical solutions to these issues 

at stake; this hearing should set the stage for a constructive consideration about protecting consumers in this new technological era. 

So I thank our witnesses for being here and our members and 

look forward to the discussion we are going to have today. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

We are here today to talk about modernizing the telephone consumer protection 

laws. It has been 25 years since Congress passed the Telephone Consumer Protection Act, and the world has changed dramatically since then. When the law was 

signed back in 1991, consumers relied primarily on landline phones to communicate, 

but today almost half of U.S. households have become ‘‘wireless-only,’’ eliminating 

their landline phones entirely, and there are more cell phones than people in the 

US. 

The current law is not reflective of these technological advances. Despite an extraordinary number of lawsuits over the years, calls and texts from bad actors continue to happen-clearly this approach isn’t a deterrent to those who place harassing, 

malicious calls. We all share the goal of preventing harmful phone calls, but it is 

increasingly clear that the law is outdated and in many cases, counter-productive. 

The attempts to strengthen the TCPA rules have actually resulted in a decline in 

legitimate, informational calls that consumers want. The FCC has granted narrow 

exceptions to specific industries in attempts to clear up ongoing uncertainty, but the 

number of petitions still pending before the Commission demonstrate that it’s time 

to examine how effective this approach has been. 

Industries across the board have real needs to communicate with their customers 

in a positive and beneficial way, and today we’ll hear from those whose daily operations have been impacted by the TCPA. We have a public utility co-op from Georgia that needs to inform their customers of neighborhood tree maintenance and 

ways to reduce their energy footprint during peak energy consumption periods. We’ll 

also hear from a managed healthcare provider that is seeking clarification to be able 

to provide critical information to patients to help lower the cost of health care. 

These folks, like many others, struggle with how to serve the needs of their customers and the economy with the lack of clarity in the law. 

I heard from a staffing company that operates in my district that connects bluecollar workers to temporary, short-term job opportunites. It used to be that those 

workers would have to sit around the waiting room of a staffing agency all day, 

waiting for a job to come up, or not. Thanks to technological advances, this company 

instead uses text messages to communicate with workers when a job that matches 

their skill set is available, giving the workers the opportunity to continue with their 

lives while still having the chance to find work. Sounds great, right? Unfortunately, 

4 

1The information has been retained in committee files and is also available at: http:// 

docs.house.gov/meetings/IF/IF16/20160922/105351/HHRG-114-IF16-20160922-SD008.pdf. 

thanks to the TCPA, they were smacked with a lawsuit for their efforts. For a business like this, a massive class-action lawsuit could mean bankruptcy. 

I think we can all agree that there is a big difference between the call fraudulently purporting to be the IRS and the legitimate reminder from the doctor’s office 

of an upcoming appointment. This is the critical distinction we need to recognize 

in order to strike the right balance. How can we protect consumers from the 

harassing, spoofed calls they do not want to receive, while at the same time ensuring that they do receive the legitimate calls that improve their quality of life? What 

are the solutions out there that can be used to determine the difference and are 

there changes to the law needed to bring them to consumers? 

I want to thank my colleagues on the Democratic side for requesting this hearing 

and for all of our members for the commitment to a productive conversation about 

modernizing an outdated law. Just yesterday, the full committee passed the AntiSpoofing Act in a bipartisan manner, legislation that prohibits bad actors from deliberately manipulating a text message number for illegal purposes. Spoofing is a 

major component of the robo-call problem, but just one piece of this complicated puzzle. There is no silver bullet to solve the problem of unwanted calls, but if there 

are legislative changes that will protect our constituents, we owe it to them to make 

every effort to mitigate the problem. I hope the momentum from our accomplishment yesterday can carry on through our efforts today to work towards the shared 

goal of protecting consumers from illegal phone calls. 

We have a unique set of perspectives here today that I hope will guide us through 

a productive discussion. From a professor who has studied the law extensively, to 

businesses concerned about violating the law while providing their services, and 

those who have been developing technical solutions to these issues at stake; this 

hearing should set the stage for a constructive consideration of protecting consumers 

in a new technological era. I thank all of our witnesses for being here and I look 

forward to hearing your testimony. 

Mr. WALDEN. And I will yield back the remaining 3 seconds of 

my time and recognize my friend from California, Ms. Eshoo, for 

her opening comments. 

Ms. ESHOO. Thank you, Mr. Chairman—— 

Mr. WALDEN. But before I do, could I ask unanimous consent to 

insert into the record a letter from the Indiana Attorney General 

Greg Zoeller, a letter from the National Association of Federal 

Credit Unions, a letter signed by several consumer groups, a statement from several banking associations, along with the very, very 

distinguished paper from our professor today and from 2014, the 

Telephone Consumer Protection Act of 1991: Adapting Consumer 

Protection to Changing Technology. 1 Without objection, we will 

enter those into the record. 

[The information appears at the conclusion of the hearing.] 

Mr. WALDEN. Now, I recognize my friend from California. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman. Good morning, everyone. 

Welcome to the witnesses. 

There is one issue that I hear consistently about from my constituents, and that is the need to put an end to unwanted phone 

calls. Whether I am in the grocery store—now, I am going grocery 

shopping late at night so that I can just get it done quickly because, people see me, recognize me, and this is what they come up 

to me to talk about. And they are 40,000 feet and climbing over it. 

Their sleep is interrupted. The day doesn’t belong to them. It is a 

5 

consistent form of harassment the way they view it. For many seniors, there are many scams, and they are susceptible to them. 

So this barrage of unwanted calls using auto-dialers and 

prerecorded messages, they are disruptive to say the least and they 

really are intrusive. And I can speak for myself when I get them 

because I consider my home my oasis, and I can’t stand hearing 

from these people. 

Now, how bad is the problem? Obviously, from what I have said, 

it is pretty bad. And estimates have found that robocalls make up 

nearly 35 percent of calls that consumers receive today. And it 

keeps climbing. The robocall blocking service YouMail tracked the 

number of robocalls made last month, August of this year alone, 

and found that there were 2.64 billion with a B. We usually talk 

about dollars with a B, these calls. That is a 9 percent increase 

over the previous month of July of this year. And that is just one 

month’s worth of robocalls, so it is no wonder that these kinds of 

calls are the number-one source of consumer complaints at the 

FCC. 

Now, Congress sought to address this 25 years ago, a quarter of 

a century ago, by passing the Telephone Consumer Protection Act, 

the TCPA. At that time the law put important protections in place 

to restrict the use of technology used to place robocalls. We took 

other steps to crack down on unwanted calls, including the passing 

of the Do Not Call list. That worked for a long time. People were 

really thrilled with it. And I was proud to be a cosponsor of that 

effort. So the TCPA was, for a long time, an effective way to limit 

the number of unwanted calls. 

Now, the FCC, I think, has done its best to implement the law 

in a way that keeps pace with today’s practices. But the law, along 

with the technologies that were embedded in it or referred to, have 

aged in plenty of ways. And it is up to us and I think it is very 

clear to us that it is time to start thinking about how we can update the TCPA to better protect consumers. And it is exactly why 

Ranking Member Pallone, Congresswoman Jan Schakowsky, and I 

called for a hearing on this. And thank you, Mr. Chairman, all our 

thanks on behalf of our constituents that we are doing this today. 

Now, there are a number of issues for us to consider as we examine the TCPA. For instance, does the FCC and the FTC have the 

tools they need to effectively enforce the law? Well, we are going 

to examine that. Are intentional violations sufficiently punished 

under the current structure of the law? We have come to a time 

and a place in our country where people break the law and then 

they settle with the regulators, and no one is punished really for 

anything. And that is a great source of frustration to people, and 

I don’t think it is fair. How do we target calls from overseas? This 

is a big thing because so much is coming from overseas that can 

result in fraud. 

So I look forward to hearing from the witnesses. 

And I think one thing Congress should not be doing is passing 

more exemptions to the TCPA. The 2015 Budget Act contains an 

exemption allowing robocalls for Federal debt collection, including 

calls to cell phones. So I am glad that the FCC put some limits on 

that exemption, but the fact remains that we still—and our constituents most importantly, people across the country—are asking 

6 

us for more protection, not more loopholes. And I think we have to 

keep our eye on that ball, too, Mr. Chairman. 

So, again, thank you for holding this hearing today, and I look 

forward to hearing from today’s witnesses and some solid suggestions about how we can actually update the TCPA to eliminate 

these issues that are plaguing all of our constituents. 

Thank you, and I yield—I have no time to yield back. Thank you. 

Mr. WALDEN. The gentlelady yields back. 

The chair recognizes the vice chair of the subcommittee, Mr. 

Latta. 

Mr. LATTA. Well, thank you, Mr. Chairman, and thanks for holding today’s hearing. The Telephone Consumer Protection Act is 

clearly outdated and needs to be reformed to accommodate current 

technological challenges. It is not reasonable to govern communications based off technology available in 1991. While it is essential 

we continue to protect consumer privacy, we must find the right 

balance between consumer rights and expectations and allowing institutions to provide information to their customers. 

Additionally, we must recognize the importance of distinguishing 

the content of communications on modernizing this act. Our goals 

should be to deter the bad actors and not punish businesses and 

organizations with the best of intentions. 

The FTC has attempted to modernize the TCPA. However, these 

reforms have not necessarily made the law better and it still remains far from perfect. In fact, the broad interpretation of the 

FTC’s definition of auto-dialer is concerning as it creates greater 

uncertainty for consumers and companies. 

Today’s hearing will provide robust conversation and ideas on 

how to best update the TCPA, and consumers’ privacy needs to be 

protected and businesses need an avenue to inform and communicate with their customers. 

And with that, Mr. Chairman, I yield back. 

Mr. WALDEN. The gentleman yields back. 

Any others seeking time? 

Then we will go to Mr. Pallone, the ranking member of the full 

committee, for opening comments. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you. 

If you think you are getting more robocalls than ever, you are 

probably right. Just this past month, a record 2.6 billion robocalls 

flooded our cell phones, work phones, and home phones. And these 

calls are more than just a nuisance; they can add up to harassment 

or even outright fraud. 

When Congress first passed the Telephone Consumer Protection 

Act 25 years ago, we stated that consumers were already ‘‘outraged 

over the proliferation of intrusive nuisance calls their homes.’’ Back 

then, we sought to balance individual privacy rights, public safety 

interests, and commercial freedoms of speech and trade. And for a 

time, the law worked. 

Unfortunately, a little over a decade later, these nuisance calls 

were on the rise again, but this time the calls did not only cause 

7 

a nuisance, many of them sought to defraud consumers. According 

to the FTC, consumer complaints of unwanted telemarketing calls 

increased over 1,000 percent between ’98 and 2002. Congress 

stepped in once more to stop this dramatic surge in calls, and we 

required the FTC to create a Do Not Call Registry, among other 

things, again turning back the tide of unwanted calls. 

But almost like clockwork, however, nuisance calls were rebounding again nearly a decade later. Robocalls were finding new ways 

to circumvent the system, and the law simply wasn’t keeping up. 

The FCC tried to reduce these robocalls, but they keep coming. 

By 2012, the FCC was receiving an average of over 10,000 complaints per month from mobile phones alone, and that number has 

only continued to grow to a point where last year, the FCC received 

more than 170,000 robocall and telemarketing complaints. 

So last month, the FCC convened a new Robocall Strike Force 

hoping to leverage the industry in the FCC’s ongoing effort, and I 

commend the Commission for working so diligently to address this 

issue. But the fact that the FCC’s actions are not reducing the 

number of robocalls demonstrates that it is time for Congress to 

once again step in. 

So I urge the strike force to continue to look for technical and 

regulatory solutions to this problem, but Congress has a role as 

well. So that is why I joined Ranking Member Eshoo and Schakowsky last month in asking that the committee hold a hearing on 

updating the TCPA. Our constituents are rightfully growing impatient with these calls, and they expect us to fix the problem. 

And I appreciate that Chairman Walden agreed to our request 

for this hearing, and I also want to thank the phone carriers for 

offering to work with us to address this problem. It is not a moment too soon, and we all need to work together to solve it. 

Now, we acted to protect consumers in ’91 and 2003. Now, 13 

years later, we should again put the FTC and the FCC back on 

firm footing so they can step up to protect consumers from these 

annoying and so often dangerous called. 

And again, I want to thank our witnesses, and I yield the balance of my time to Ms. Schakowsky. 

Ms. SCHAKOWSKY. I am so grateful for the opportunity to join you 

today. I thank Ranking Member Pallone for yielding time to me. 

As has been mentioned, last month, I joined Ranking Members 

Eshoo and Pallone to request a hearing on updating the Telephone 

Consumer Protection Act for the 21st century. This year marks the 

25th anniversary of TCPA. Congress has made some updates over 

that time such as the Do Not Call Registry, but the law is beginning to show its age. 

Consumer complaints about unwanted calls are on the rise. I 

think Ranking Member Eshoo really described what all of us are 

hearing. I have heard from many constituents in recent months 

trying to stop robocalls. I have received many on my cell phone. We 

need to close loopholes and improve enforcement tools. 

My Democratic colleagues and I have introduced many bills to 

protect consumers as they use their phones. For instance, I introduced the Protect Consumers from Phony Pay Charges Act in June 

to stop telephone companies from including unauthorized charges 

on phone bills. Until we act on such improvements, we are going 

8 

to continue to see family meals disrupted, fraudsters exploiting 

seniors, consumers subjected to unwanted charges. And it is time 

to reform TCPA. 

I am going to apologize that I have to leave in a moment because 

the Consumer, Manufacturing, and Trade Subcommittee, on which 

I am the ranking Democrat, is also having its hearing right now. 

But that said, I hope this is just the beginning of this discussion 

and that we will have the opportunity for joint hearings with this 

subcommittee and the CMT in the future. 

The Federal Trade Commission and Federal Communications 

Commission frequently work together on these issues and the subcommittees with jurisdiction over those agencies should as well. 

So I thank the opportunity to be here this morning, and I yield 

back. 

Mr. WALDEN. All time has been consumed. I will now go to our 

witness panel. And again, thank you all for being here this morning. 

And our first witness is Michelle Turano—we appreciate you 

being here—Vice President, Government Affairs and Public Policy 

for WellCare. Good morning. 

Ms. TURANO. Good morning. 

Mr. WALDEN. Pull that microphone fairly close. Make sure the 

light is on on the base there, and you are good to go. 

STATEMENTS OF MICHELLE TURANO, VICE PRESIDENT, PUBLIC POLICY AND GOVERNMENT AFFAIRS, WELLCARE 

HEALTH PLANS; SHAUN MOCK, CHIEF FINANCIAL OFFICER, 

SNAPPING SHOALS ELECTRIC MEMBERSHIP CORPORATION; 

SPENCER WEBER WALLER, PROFESSOR AND DIRECTOR, INSTITUTE FOR CONSUMER ANTITRUST STUDIES, LOYOLA 

UNIVERSITY CHICAGO; AND RICHARD SHOCKEY, PRINCIPAL, 

SHOCKEY CONSULTING 

STATEMENT OF MICHELLE TURANO 

Ms. TURANO. Thank you. Mr. Chairman, Representative Eshoo, 

Ranking Member Pallone, members of the committee, I am 

Michelle Turano, vice president of Public Policy and Government 

Affairs for WellCare Health Plans. Thank you for your invitation 

to appear today. 

We fundamentally agree with the premise of this hearing that we 

need to minimize nuisance and unsolicited phone calls while ensuring laws and regulations keep pace with the evolution of telecommunications technology. We also share the goal of maintaining 

privacy, consistent with strict Federal standards such as under the 

Health Insurance Portability and Accountability Act, or HIPAA. 

Let me begin by telling you a little bit about WellCare. 

Headquartered in Tampa, Florida, WellCare focuses exclusively on 

providing government-sponsored managed health care through 

Medicare Advantage, Medicaid, and Medicare prescription drug 

plans to families, children, seniors, and individuals with complex 

medical needs. 

Our members tend to be vulnerable older or disabled Americans 

with limited access to resources who are often transitory and rely 

heavily on cell phones versus a dedicated landline, which underVerDate Nov 24 2008 14:16 Feb 15, 2017 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-172 CHRIS
9 

scores the need for laws and regulations to be updated to reflect 

cell phone use. 

I would like to be clear. Our communications with these members is for the purpose of sharing health care information, not for 

sales and not for marketing. WellCare has statutory and contractual mandates from Federal and State governments to serve our 

members. Communication with our members to coordinate and assist with care often requires the use of a cell phone. In many cases, 

we receive an enrollee’s contact information via the State or Federal Government. 

Beneficiaries can be randomly assigned to WellCare and might 

not apply to us directly. Sometimes we have no way of verifying if 

the number provided to us is a cell phone or a landline, yet we are 

still required to contact them. 

State Medicaid contracts require WellCare to make telephone 

contact with members for health-related purposes. For example, 

Florida requires outreach to enrollees within 30 days to complete 

a health risk assessment. Georgia requires outreach to parents 

with newborns within 7 days to inform them of certain health services. These are not marketing calls but are directly tied to providing critical care to our members and making the best and most 

efficient use of taxpayer dollars. 

The uncertainty surrounding the FCC’s interpretation of the 

TCPA has had a chilling effect on the ability of WellCare and other 

managed health care plans to conduct this kind of outreach to 

members. This adds cost while reducing efficiency and negatively 

affects the health of our members. 

While the TCPA serves an important privacy-enhancing purpose, 

the FCC’s interpretation does not acknowledge that there is comprehensive regulation of the use of protected health information by 

HIPAA that governs not only treatment, payment, and health care 

operations messages but severely restricts marketing communications. 

Recent interpretations of the TCPA could be read to provide that 

companies like WellCare cannot conduct automated outreach to a 

cell phone to deliver a health care message unless the calling party 

can also prove prior express consent, a requirement that the 

HIPAA privacy rule expressly does not require. These are the exact 

same phone calls that health care providers like doctors and pharmacies can make today. But the FCC has excluded managed health 

care firms from making these same sorts of calls. 

WellCare and others recently petitioned the FCC seeking clarification around the use of member telephone numbers under the 

TCPA compared to the use of the same information under HIPAA. 

In doing so, we are hoping the Commission will protect non-telemarketing calls allowed under TCPA in light of their unique value 

to and acceptance by consumers and do so in an expedited manner. 

Legislatively, it would be helpful if Congress could clarify that 

the provision of a phone number to a HIPAA-covered entity or business associate constitutes prior express consent for health care 

communications to that number. The TCPA’s protection of a consumer’s right to control unwanted calls would still be respected by 

allowing the consumer to revoke that consent at any time. 

10 

In closing, I want to reiterate that the health and well-being of 

our enrollees is WellCare’s top priority. We need to work together 

and we look forward to working together with this committee and 

Congress on modernizing the TCPA. 

Thank you for your invitation to testify, and I look forward to answering your questions. 

[The prepared statement of Michelle Turano follows:] 

11 


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Written Testimony o(Michelle Turano 

Vice President, Public Policy and Government Affairs, Well Care Health Plans 

Before the House Committee on Energy and Commerce 

"Modernizing the Telephone Consumer Protection Act" 

Thursday, September 22, 2016, 11 AM 

Rayburn House Offlce Building Room 2322 

Mr. Chairman, Representative Pallone, members of the Committee, I am Michelle Turano, Vice 

President, Public Policy and Government Affairs for Wel!Care Health Plans. I want to thank 

you for your invitation to appear today to share our experiences regarding the impact the 

Telephone Consumer Protection Act (TCPA) has on health care consumers and the health care 

providers trying to contact them. 

We fundamentally agree with the premise of this hearing that the TCPA is in need of 

modernization in light of the broad policy goals of the TCPA of eliminating unwanted calls from 

unwanted callers. It must be updated to ensure that the public benefits from evolutions in 

telecommunications technology and accounts for the way Americans interact and consume 

information in the modern world. We also share the goals of maintaining privacy consistent with 

strict, federal standards, such as the Health Insurance and Portability and Accountability Act 

(HIPAA), and minimizing nuisance from unwanted communications to individuals' home or cell 

phones. 

We would like to use this opportunity to illustrate the positive way modern technologies can 

improve individuals' health and wellness and create efficiencies in health care treatment, 

payment, and operations that benefit consumers through lower premiums and earlier treatment 

and prevention. We also would like to address how the privacy of our members is well guarded 

through the careful structure ofHIPAA, which overlays such communications outreach. 

Background on WeliCare 

Headquartered in Tampa, Florida, WellCare focuses exclusively on providing governmentsponsored managed healthcare services, primarily through Medicaid, Medicare Advantage and 

Medicare Prescription Drug Plans, to families, children, seniors, the dually-eligible (those who 

qualify for both Medicare and Medicaid) and individuals with complex medical needs. WellCare 

has statutory and contractual mandates from federal and state government partners to serve its 

members and ensure that they not fall outside of the healthcare protections that Congress has 

created. Our main goal is to ensure beneficiaries receive the right care, at the right time, in the 

most appropriate environment in many cases this means providing education and care to 

manage chronic conditions. This proactive and preventative care not only improves the health of 

our members, but also reduces costs in the healthcare system. Managed health care plans create 

an integrated healthcare delivery system, allowing for the coordination of care between the 

member's doctors and specialists, hospitals and other healthcare service providers, as well as 

working with the local community and social service agencies to meet our members' need for 

support. 
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22980.002

Managed health care companies like WellCare administer Medicaid and Medicare benefits under 

contract with state and federal agencies and many contracts require telephonic contact with 

members for many health-related purposes. Our state and federal partners have realized the 

more interaction a member has with their health plan, the more likely the member is to enjoy 

better health outcomes and lower healthcare costs. For example, Florida requires outreach to new 

enrollees within 30 days to complete a health risk assessment and Georgia requires outreach to 

parents with newborns within 7 days to inform them of health check services. 

TCPA Effect on Health Care Policy Initiatives 

While the TCPA serves an important privacy-enhancing purpose, the FCC's interpretation of this 

purpose has failed to acknowledge that there is a pre-existing and comprehensive regulation of 

the use of protected health information by HTPAA Covered Entities and their business associates 

that governs not only treatment, payment and health care operations messages, but severely 

restricts marketing communications. The uncertainty surrounding the Federal Communications 

Commission's (FCC) interpretation of the TCPA has had a chilling effect on the ability of 

WellCare and other managed health care plans that are extensively regulated in these 

communications by HIP AA to conduct outreach to their members and otherwise fulfill the public 

policy objectives specified by states and the federal government. 

Empirical studies demonstrate that health care related texts and calls lead to more engaged 

patients, better patient outcomes, and lower health care costs for consumers, which are critical 

public health goals. Many Americans are not receiving recommended health tests and 

screenings. For example, among adults in the age groups recommended for cancer screenings, 

about two in five were not up to date with colon cancer screenings, one in four women were not 

up to date with breast cancer screenings, and one in five women were not up to date with cervical 

cancer screening. 1 Text messages in particular have proven effective in delivering health care 

reminders and increasing adherence to treatment attendance at health care appointments. 2 In 

studies among low-income urban populations, researchers found that 72.7% of parents who 

received text reminders brought their children in for recommended follow-up vaccination 

1 Many Americans Not Getting Routine Cancer Screenings: CDC, HealthDay News, May 7, 2015, available at 

https:/ /consumer .hea!thday .com/cancer-in fOrmation-5/brcast -cancer-news-94/manv -americans-not -getting-routinecancer-screenings-cdc-699217.html (last visited July 20, 2016) (citing to Stephanie Bernik, M.D., chief, surgical 

oncology, Lenox Hill Hospital, New York City; Louis Potters, M.D., chief, radiation medicine. North Shore-LIJ 

Cancer Institute, New Hyde Park, N.Y.; U.S. Centers lor Disease Control and Prevention, news release, May 7, 

2015.) 

2 Kati Annisto, Marita Koivunen & Marilla Va!imaki, Use of Alobile Phone Text Message Reminders in Health Care 

Services: A Narrative Literature Review, 16(10) J. Med.lnternet Res. e222 (2014). 

2 
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appointments. 3 With some 20,000 children hospitalized annually for influenza, any increase in 

inoculation rates directly improves public health. 4 

Additionally, 20% to 30% of prescriptions are never retrieved by patients and up to 50% of 

medications are not taken as prescribed. 5 This non-adherence produces between $100 billion 

and $289 billion of avoidable costs annually. 6 Telephone outreach, to be effective, needs to use 

technology that is (or is at risk of being deemed, given the FCC's overbroad interpretation) an 

automatic telephone dialing system (A TDS). Automated technology saves enormous time and 

money by using technology to take over expensive, time intensive manual processes. These time 

and cost savings enable communications that are important Jor public health goals, which is why 

the usc of automated technologies in the health care industry have historically been and should 

continue to be treated very ditlerently from other contexts. Those cost savings directly benefit 

patients in lowered overall health care costs. Further, when attempting to contact thousands, if 

not millions of members, compliance with outreach requirements is practically impossible 

without automated systems. Critical outreach on a large scale simply cannot occur without these 

technologies. 

In order to modernize the TCPA, we must start at the heart of the issue. Today's reality is much 

different than that of 1991 when the TCPA was first introduced. In 1991, it was never envisioned 

that by 2015, 47.4% of American households relied exclusively on wireless devices for 

telephone service, and "more than two-thirds of all adults aged 25-34 and of adults renting their 

homes" live in wireless-only households. 7 

For automated telephonic outreach to be effective, it must reach consumers' residential and 

mobile phones. Wireless-only households are more likely to have numerous health challenges, 

such as financial barriers, substance abuse, and lack of influenza vaccinations. 8 Hard-to-reach 

3 Melissa S. Stockwell, MD, MPH, eta!., Text Message Reminders for Second Dose of Influen=a Vaccine: a 

Randomi=ed Controlled Trial, 135(!) Pediatrics e83-c91 (20 15), available at 

http:/ lpediatrics.aappu bl ications.orgl content/ 13 51 1 /e83. 

4 See Stockwell ct al., Effect of a Text Messaging Intervention on lnf/uen=a Vaccination in an Urban. Low-Income 

Pediatric and Adolescent Populotion, 307( 16) lAMA 1702-08 (20 12); Maanvi Singh, Texted Reminders Help 

Parents Get Kids In For Flu Shots, http:l/www.npr.org!sections/health-shots/2014/l2/29137376769l!textedreminders-help-parents-get-kidsin-for-tlu-shots (last visited June 3, 20 16). 

5 Brian Fung, The $289 Billion Cost of Medication Noncompliance, and What to Do About It, THE ATLANTIC, Sept. 

11, 2012, available at http:llwww.theatlantic.c()m/health/archive/2012/09/the-289-billioncost-of-medicationnoncompliance-and-what-to-do-about-ill2622221 (last visited June 3, 2016). 

6 !d. 

7 Stephen J. Blumberg & Julian V. Luke, Wireless Substitution: Early Release of Estimates From the National 

Health Interview Survey, JanuarrJune 2015, Div. of Health Interview Statistics, Nat' I Ctr. for Health Statistics, 

Centers for Disease Control and Prevention (Dec. 2015). available at 

http://www.cdc.govlnchsldata/nhis/earlvreleaselwireless201512.pdf (last visited June 3, 2016), at l. 

8 !d. at3. 

3 
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populations are especially prone to use cell phones as their primary means of telephonic 

communication. 9 Other means of outreach, such as mailings and calls to landlines, are not 

effective in reaching many consumers, especially young people and low-income groups. 

Available data shows that a large majority of consumers desire access to programs that use 

telephonic contact for health care, recognizing there arc concrete health benefits. A survey of 

commercially insured consumers found the highest acceptance for health management programs 

when they are mobile contacts. 10 Additionally, telephonic outreach using automated 

technologies can save lives. For example, colon cancer is the number two cancer killer in the 

United States, with 52,000 fatalities annually. 11 ln one patient health engagement outreach 

program, a telephonic campaign to a group of 400,000 Medicare beneficiaries encouraging 

recommended colorectal cancer screening resulted in identification of 299 cases, about half of 

which were in a stage of early detection. 12 This outreach saved lives through early detectionand in the process saved $24,000 to $34,000 per early cancer stage detected - resulting in 

significant avoidance of pain and suffering, as well as approximately $9 million in monetary 

savings. 13 

Telephonic outreach via automated technology also has been shown to be successful in 

encouraging consumers to receive other important physician-recommended screenings, with 

improved rates found for diabetic glaucoma screenings (with 51.6% compliance among those 

receiving intervention versus 42.5% for those who do not), mammography (20.6% versus 

I 0.7%), and cervical cancer screening (15% versus 8.9%). 14 Telephonic outreach has been 

shown to reduce post-discharge hospital readmission rates, with a study showing that discharged 

patients receiving follow-up outreach had a readmission rate of 9%, as compared to 15% for 

patients not receiving outreach. 15 

9 Stockwell et al., Text4ffea/th: Impact q{Text Message Reminder,.Recallsfor Pediatric and Adolescent 

lmmunioations, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3483980/ 

10 Elizabeth Boehm, et al., Afobile and Social Gain Ground in Wei/ness and Disease k!anagement, Forrester 

Research, available at 

https://www.forrester.com/Mobilet And+Sociai+Gain+Ground-t ln+Wellness+And+Disease+:V!anagement/fulltexti-

/E-res5823l 

11 'W\\lW.cdc.gov/cancer/colorectal/statistics. 

12 Ex parte Letter from S. Jenell Trigg, Counsel to Eliza Corp., to Marlene 1!. Dortch, Esq., Secretary, FCC (March 

31, 2016) re: written ex parte presentation to Consumer Protection and Governmental Affairs Bureau on Health 

Information Technology and Patient Health Engagement ('"PHE Ex Parte Presentation"), slide 8. 

13 See id 

14 PHE Ex Parte Presentation, slide 16. See also Rebecca R. Ruiz. FCC Chief Seeks Broadband Plan to Aid the 

Poor, N.Y. TlMES, May 28,2015. at AI, available at http://www.nytimes.com/2015/05/28/business/fcc-chief-seeksbroadband-plan-to-aid-the-poor.html. 

15 PHE Ex Parte Presentation, slide 15. 

4 
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22980.005

In addition the TCPA increases costs by focusing on the capability of the equipment used to 

deliver these healthcare messages rather than the actual use. The July 2015 Order clarifies the 

term "automatic telephone dialing system" includes equipment with the "capacity" to dial 

random and sequential numbers, which means the "potential ability" to perform these functions 

rather than the "present ability" to do so. Order aq!~ 15, 19; see also~ 16. This means whether 

the equipment is utilized as an autodialer or it is used in its normal manual-dial method is of no 

consequence. A health plan would need to purchase a separate dialer that is incapable of 

autodialing in order to comply with the current construct ofTCPA. Nuances in the TCPA such as 

this unnecessarily drive up costs. 

As I mentioned earlier, non-compliance with the TCPA carries the potential for large penalties. 

These penalties also drive concern and the need for reform. In addition to the regulations 

surrounding the capabilities of the equipment, the TCPA also permits one call to be made 

without liability after a telephone number is reassigned ti·om the person who gave consent to 

another person who has not given consent. !d. at ~ 72. Even if this call does not yield actual 

knowledge of the reassignment, the caller is deemed to have constructive knowledge, and will be 

liable for all calls placed thereafter. Jd. at ~~ 72, 85. These penalties may have once been 

effective in deterring unwanted callers, but now may actually penalize those who desire the 

information the calls contain. 

Providing health benefits to the most medically complex individuals is wrought with challenges, 

least of which is actually making contact with the member. Frequently, our members struggle 

with permanent housing and other financial challenges. It is not uncommon to have multiple 

phone numbers for a single member; often times an unintended recipient answers and informs us 

that either a wrong number has been dialed or the member no longer utilizes the phone number. 

Sometimes, however, the call goes unanswered. To import knowledge of a "reassigned phone 

number" based off one-unanswered phone call is to penalize the caller for attempting to comply 

with the mandate of providing information and education to its members in an efficient and cost 

effective manner. 

Harmony between HIPAA and the TCPA 

The FCC's interpretations of the TCPA, including that of the 2015 Declaratory Order, could 

erroneously be interpreted to provide that a Covered Entity, like Wel!Care, or a business 

associate cannot use protected health information (PHI) for automated outreach to a cell phone to 

deliver a health care message unless the calling party can also prove prior express consent - a 

requirement that the HIPAA Privacy Rule expressly does not require for good reason. These are 

the exact same calls that health care providers can make today, but the FCC is silent as to 

whether managed health care companies can make these same sorts of calls. 

Congress passed HlPAA in 1996 to enhance health insurance portability, reduce waste in 

healthcare spending, and improve administrative efficiency. 16 At the same time, Congress 

recognized that the expansion of electronic transactions required greater privacy and security 

protections for individuals' health information. In passing HIPAA, Congress recognized the 

vital role that effective communication plays in ensuring effective, efficient, and personalized 

16 Pub. L. No. 104-191, II 0 Stat. 1936, pmbl (1996). 

5 
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22980.006

healthcare, and Congress sought to ensure the promise of improving hcalthcare while decreasing 

its costs and preserving privacy. Consistent with this balancing, HIPAA comprehensively 

regulates insurance providers and managed health plans such as WellCare, including their 

relationships with and communications to members and patients. 

HIPAA, and the Privacy Rule issued pursuant to HIPAA, authorize and regulate the use of 

PHI. 17 Courts have held that PHI regulated by HIPAA includes telephone numbers. 18 The 

Privacy Rule established a "foundation of Federal protection for personal health information, 

carefully balanced to avoid creating unnecessary barriers to the delivery of health care." 19 

HIPAA applies to all Covered Entities, which includes not only health care providers, but also 

health plans, health care clearinghouses, and their business associates which are service 

providers to the Covered Entities that need access to PH l to perform their services. 20 

The Privacy Rule draws careful distinctions between using and disclosing PHI for permissible 

health care related communications, which do not require specific prior authorization, and 

communications that do require prior written authorization. Covered Entities are permitted to 

make health care-related communications without prior authorization (or, in TCPA terms, prior 

express consent), for the purposes of treatment, payment, and health care operations under the 

Privacy Rule's general rules. 21 The Department of Health and Human Services (HHS) 

acknowledged the importance of "facilitat[ing] those communications that enhance the 

individual's access to quality health care," 22 and "that some of these communications are 

required by State or other law."23 HlPAA requires Covered Entities to obtain a valid 

authorization before using an individual's PH! for marketing purposes. The Privacy Rule 

authorizes non-marketing communications between Covered Entities, their business associates 

and their patients or members without prior authorization "[t]o avoid interfering with, or 

17 PHI is "individually idcntitiable health information" that is "(i) Transmitted by electronic media; (ii) Maintained 

in electronic media; or (iii) Transmitted or maintained in any other form or medium.'" See definition of""protected 

health information" at 45 C.F.R. § 160.103. "'Individually identifiable health information" consists of health 

information, including demographic information, that identifies an individual or could be used to identify an 

individual, and includes in!ormation which "[rjelates lo the past, present, or future physical or mental health or 

condition of an individual; the provision of health care to an individual; or the past, present. or fUture payment for 

the provision of health care to an individual." See id. 

18 See Baisden v. Credit Adjustments, Inc., 813 F. 3d 338.346-47 (6th Cir. 2016); Mais v. Gulf Coast Collection 

Bureau, Inc., 768 F. 3d 1110. 1125-26 (6th Cir. 2014). 

19 HHS Use and Disclosure Guidance at I. 

20 45 C.F.R. § 160.103. 

21 45 C.F.R. § 164.502 ("t:ses and disclosures of protected health information: General rules). And each Covered 

Entity is allowed to use and disclose PHI without prior authorization for il> own treatment, payment and health care 

operations. 45 C.F.R. § !64.506(b )(I). 

22 Standards for Privacy and Individually Ident{fiabfe Jlealth lnj(Jrmation; Final Rule, 67 Fed. Reg. at 53186. 

23 Id 

6 
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22980.007

unnecessarily burdening communications about, treatment or about the benefits and services of 

health plans and health care providers, " 24 while restricting the ability to use PHI for true 

marketing purposes. 

HIPAA already provides for steep penalties, including criminal and civil penalties and robust 

enforcement by the Office of Civil Rights within HHS for privacy violations by HIPAA-covercd 

entities and their business associates. State Attorneys General also arc authorized to bring civil 

actions in Federal Court for HIPAA violations on behalf of harmed residents. 25 Civil penalties 

range from $100 to $50,000, with a cap of$1.5 million for violations of the same provision. 26 

I. Recommendations 

The TCPA was intended to protect consumers from annoying and harassing phone calls never 

consented to by the recipient. In 1991, when the TCPA was first introduced, the consumer did 

not envision how information would be disseminated in 2016. Today, the consumer is more 

likely to receive an important health message via cellular phone call, text message and/or email 

as they would be by regular mail. As detailed, these health messages can mean the difference 

between obtaining a flu shot before one of the worst flu seasons, reminding a recently discharged 

hospital patient to change the dressing on a wound to avoid infection and readmission or even 

life or death. As part of any attempts to modernize TCPA, Congress should clarify that the 

provision of a phone number to a HlPAA-Covered Entity or business associate (as those terms 

are defined under HIPAA), whether by an individual, another Covered Entity, or a party engaged 

in an interaction subject to HIPAA, such as an employer or governmental entity, constitutes prior 

express consent for health care treatment, payment, and health care operations communications 

to that number. This clarification is necessary, consistent with court precedent/7 and provides 

deference to the already-stringent HIPAA tramework. The TCPA's protection of a consumer's 

24 Standards for Privacy and lndMdually Identifiable Health Information; Final Rule. 67 Fed. Reg. 53182, 53183 

(Aug. 14, 2002). 

2S 42 u.s.c. § 1320d-5(d)(2). 

"45 C.F.R. § 160.401. 

27 See, e.g., Baisden v. Credit Adjustments. inc .. 813 F.3d 338. 345-46 (6th Cir. 2016)(adopting the holding of Mais 

and finding that "consumers may give 'prior express consent' under the FCC's interpretations of the TCPA when 

they provide a cell phone number to one entity as part of a commercial transaction, which then provides the number 

to another related entity from which the consumer im:urs a debt that is part and parcel of the reason they gave the 

number in the first place"); Penn v. NRA Grp .. LLC, No. CIV . .JKB-13-0785. 2014 WL 2986787, at *3 (D. Md. July 

1, 2014) (finding "'prior express consent'' where plaintiff provided cell phone number to hospital in relation to 

medical services and received calls in reference to an unpaid debt from those services); Hudson v_ Sharp llealthcare, 

No. 13-cv-1807-MMA, 2014 WL 2892290, at *6 (S.D. Cal. June 25, 2014) (finding plaintiff consented to receive 

calls when she orally provided her number and then signed an attestation form with the number); Elkins v. Medea 

Health Sols .. Inc., No. 4:12CV2141 TIA, 2014 WL 1663406, at *7 (E.D. Mo. Apr. 25, 2014) (finding plaintiff 

consented to receive calls from a pharmacy benefits specialist when she gave her cell phone number at the time of 

enrollment in a group health plan). 

7 
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22980.008

right to control unwanted calls would still be respected by allowing the consumer to revoke the 

consent. 

Additionally, in modernizing the TCPA, Congress should look to the intent of the caller to 

impose liability. A HIPAA Covered Entity or their business associate calling to offer a flu shot 

or a reminder of an upcoming doctor's appointment should be afforded the ability to contact their 

members and offer their services without the creation of legal liability when the intended 

recipient has abandoned use of the called phone number. Similarly, if the goal is to provide cost 

effective health care to consumers. Congress should look to clarify the definition of autodialer, 

so as not to include devices with the capability to autodial. Finally, Congress should eliminate 

the FCC's strict liability interpretation (e.g., reassigned cell phone numbers) and clarify the 

prohibition relates to calls placed to the intended recipient. Companies should be held to having 

a reasonable compliance program in place consistent with best practices. 

Thank you tor your invitation to testify today, and I look forward to answering your questions. 

8 
19 

Mr. WALDEN. Thank you, Ms. Turano. That was very helpful testimony as we look at this law and the consequences out in the real 

world. 

We will go now to Mr. Shaun Mock, who is chief financial officer 

of the Snapping Shoals Electric Membership Corporation. 

Mr. Mock, welcome. Thanks for being here. We look forward to 

your counsel. 

STATEMENT OF SHAUN MOCK 

Mr. MOCK. Thank you for the opportunity to address this committee regarding the impacts of the Telephone Consumer Protection Act on my electric cooperative, Snapping Shoals EMC. We are 

a nonprofit, consumer-owned co-op headquartered in Covington, 

Georgia, where we provide electric service to about 97,000 mostly 

residential members southeast of Atlanta. 

Snapping Shoals has a proud tradition of member service and innovation. We constantly strive to improve our services not because 

of earnings targets but rather to improve the lives of our members. 

Our members of the 21st century expect and demand uninterrupted electric service, along with a host of modern communication 

tools. In recent years, our ability to communicate with our members has been stymied by the uncertainty surrounding existing 

TCPA regulations. Like most complicated matters, the existing regulations are neither all good nor all bad. 

We are absolutely in favor of protecting our members from unwanted communication. However, we are also in favor of removing 

undue liability found within the confines of the existing regulation. 

Our industry welcomed recent FCC rulings when the Commission 

recognized the importance of timely utility notifications. However, 

these orders did not go far enough in patching up the increasingly 

archaic regulations associated with existing law. 

Beginning in 2010, Snapping Shoals offered a prepaid electric 

program that now serves over 11,000 residential members. This 

program allows members to take control of their electricity usage 

much the same pay-as-you-go manner as fueling up the family car. 

In addition, there are no up-front deposits and no disconnect or reconnect fees. 

Upon consent, members are provided with low-balance and disconnect notifications. Most members establish a default low balance, which becomes the notification threshold once active. Timely 

information is vital to providing these members with a memberfriendly program. 

Since launching the program, we have learned that our prepaid 

membership needs are very different than traditional members. We 

have found that not only does the typical prepaid member use less 

electricity but will also paid towards their electric balance at least 

five times each month. 

In short, prepaid members are more engaged with our co-op on 

a daily basis and require more up-to-date information than traditional members. We have found that our low-income populations 

are more likely to choose our prepaid billing option. This fact is especially relevant when we consider that liability concerns over current TCPA regulations prompted Snapping Shoals to discontinue 

all automated telephone notifications in June 2014. 

20 

In late 2013, Snapping Shoals faced legal action alleging improper unsolicited phone calls under the strict liability portion of 

the TCPA statute. Although the case has since been resolved, 

Snapping Shoals made substantial negative changes to our member 

notification offerings as a result of this complaint. 

The mobile number at issue was provided by a prepaid member 

upon establishing service. The member provided consent and 

verified the phone number at least seven times through a series of 

member-initiated phone calls. Without our knowledge, sometime in 

late 2011, our member changed phone numbers but continued to 

receive electric service at the original address while also receiving 

almost daily email and phone low-balance notifications until disconnecting service in April of 2013. Daily notifications sound excessive but reflects the member’s practice of paying small amounts, 

often daily, to maintain the lowest balance possible. 

Unfortunately, our original automated phone system did not 

allow for the member to simply opt out from within the phone call. 

Our automated systems were in their infancy, and we acknowledged that these systems should be improved and have continued 

to work with our service providers to develop a more robust member solution. 

The prepaid billion program at Snapping Shoals was certainly 

not the first within our industry, but the rapid growth of our program meant that we would be one of the first to experience the 

growing pains associated with reassigned phone numbers. At best, 

the FCC has offered a patchwork of best practices intended to protect members and reduce liability concerns. However, the strict liability provisions within the statute leave no room for reasonable 

application of the law that would reflect the modernization of communication. 

By June of 2014, our co-op reluctantly made the unpopular decision to discontinue all automated phone notices. Every attempt was 

made to notify our members of the change in hopes of avoiding any 

unnecessary service interruptions. Despite our best efforts, we still 

receive numerous complaints from angry members that had grown 

to depend on these phone notifications. 

The only remaining channel to safely and effectively communicate with our members is through email. Unfortunately, e-mailonly notifications can exclude a large portion of our membership 

who do not have Internet-connected devices or reliable Internet 

service. We need help from Congress and the FCC to mitigate concerns over costly and burdensome TCPA litigation for businesses 

like Snapping Shoals EMC. 

This hearing is a great first step, and I look forward to taking 

your questions today and working with you to improve the TCPA 

moving forward. 

[The prepared statement of Shaun Mock follows:] 

21 


22980.009

Written Testimony of 

Shaun Mock. CFO 

Snapping Shoals Electric Membership Corporation 

Before the Subcommittee on Communications and Technology 

Modernizing the Telephone Consumer Protection Act 

Electric Cooperatives and the Telephone Consumer l'rotection Act 

Thank you for the opportunity to address this committee regarding the impacts of the Telephone Consumer 

Protection Act (TCPA) on Electric Cooperatives, and more importantly our 42 million consumer-members 

nationwide. Electric Cooperatives share a unique and proud history of bringing electricity to rural America 

during a time in which it was simply not financially profitable for traditional investor owned utilities to 

provide service. Since our inception, electric cooperatives have remained consumer-member driven 

organizations that strive to deliver best in class service at affordable prices. Through each generation and 

with each decade's passing electric cooperatives have been on the forefront of new technology. We 

constantly strive to improve our services, not because of earnings targets, but rather to improve the lives of 

the members that we serve. 

Electric cooperatives are private, not-for-profit businesses owned and governed by their consumers (known 

as consumer-members). Two principles under which all co-ops, including electric co-ops, operate are 

democratic governance and operation at cost. Specifically, every consumer-member can vote to select local 

board members that oversee the co-op, and the co-op must return to consumer-members revenue above 

what is needed for operation. Under this structure, electric co-ops provide economic benefits to their local 

communities rather than distant stockholders. Nationwide, over 900 electric cooperatives provide power to 

42 million Americans in 47 states covering three quatiers of the nation's land mass 1

• 

1 http://www.nreca.coop/about-electric-cooperatives/co-op-facts-figures/electric-co-op-fact-sheet-2016-03/ 
22 


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To say that new technology has changed the utility landscape, would be an understatement. Our consumermembers of the 21" century expect, and often times demand nearly uninterrupted electric service along with 

a host of modern tools that we all seem to expect in modern life. In recent years, our ability to communicate 

with our consumer-members has been stymied by the uncertainty surrounding the existing TCPA 

regulations. Like most complicated matters, the existing TCPA regulations are neither all good, nor all bad. 

We arc absolutely in favor of protecting consumer-members from unwanted communications. We are in 

favor of providing choices in how we interact with our consumer-members. However, we are also in favor 

of removing undue liability and the ambiguity found within the confines ofthe existing TCPA regulations. 

Our industry welcomed the news of recent FCC Declaratory Orders' as one of our primary concerns was 

addressed when the commission recognized the importance of utility notifications. However, these orders 

do not go far enough in patching up the increasingly archaic regulations found in the TCPA. 

Who is Snapping Shoals Electric Membership Corporation? 

Snapping Shoals Electric Membership Corporation (SSEMC) is a non-profit, consumer-owned electric 

cooperative headquartered in Covington, Georgia. We provide electric service to about 97,000 consumermembers along 6,200 miles of energized line in an eight-county area southeast of Atlanta. Snapping Shoals 

EMC's roots go back to the 1930s and the early days of America's rural electrification movement. Since 

that time, Snapping Shoals EMC has built a strong reputation for providing reliable power and excellent 

customer service. Through the cff01is of our nearly 230 dedicated employees, many of whom are 

cooperative members themselves, SSEMC members boast some of the lowest electric rates in Georgia3

• 

Snapping Shoals EMC membership base is primarily residential. Approximately 94% or 91,000 residential 

accounts comprise the system. The remaining non-residential accounts consist of 4,000 small commercial 

'FCC Declaratory Ruling and Order 15-72 (July 10, 2015) 

FCC Declaratory Ruling 16-88 (August 4, 2016) 

3 GA Public Service Commission 2016 Residential Rate Survey (All Providers Summer) 

http://www.psc.state.ga.us/electric/surveys/residentialrs.asp 
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22980.011

businesses, 1,800 Public Street and Highway lighting accounts, and 43 Large Commercial and Industrial 

accounts. Providing our consumer-members with reliable, affordable electric service is not just our goal; it 

is our only reason for existence. Through 78 years of service. SSEMC has provided affordable energy 

solutions to power our consumer-members through life's every day challenges. One such solution, known 

as prepaid metering, has become so successful that its impact to our consumer-members and Snapping 

Shoals EMC operations cannot be understated. 

The Growth of Prepaid Metering 

Prepaid metering was originally launched on a trial basis during the fall of2010. Initially offered to new 

consumer-members only, the SSEMC prepaid program has grown to include over 11,000 residential 

consumer-members, which represents 12% of our total residential membership. Highlights of the prepaid 

program are as follows: 

o No Deposit Required: Consumer-members are able to forego normal deposit requirements in 

exchange for paying for their electric service in advance. 

o Daily Bill Calculation: Once a prepaid balance is established future energy consumption is 

calculated daily and deducted from the member's prepaid balance daily. 

o No Minimum Balance Required: Consumer-Members can elect to receive automated notifications 

from SSEMC once their balance falls below a predetermined amount. 

o Meter automatically disconnects once balance falls below zero-$. 

o Meter automatically reconnects once payment is received and prepaid balance is above zero-$. 

o Automated Low Balance Notilications Require Verbal Consent from the consumer-member. 

o Originally, notification options included automated phone call, text, or email. 

o Consumer-Members can verify prepaid balance twenty four hours a day via website, smartphone 

app, or manual inquiry via automated phone system. 
24 


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We have learned in the six years since the program's inception that om prepaid membership's needs and 

expectations are very different than traditional residential members. Instinctively, the prepaid member tends 

to monitor electricity usage and balance information daily. To this end, we have found that not only does 

the typical prepaid member use less electricity; the average prepaid member will also pay towards their 

electric balance at least five times each month. In short, prepaid members are more engaged with our 

cooperative on a daily basis and require more up-to-date information than traditional consumer members. 

It is also noteworthy that although SSEMC does not collect any income based demographic information of 

our membership, it is generally accepted that our low-income populations are more likely to choose our 

prepaid billing option. This fact is especially relevant when we consider that liability concerns over current 

TCPA regulations prompted SSEMC to discontinue all telephone disconnect and low balance notifications 

in June 2014. Email notifications are still available, but many low-income and elderly consumer-members 

are less likely to own a smart phone or have daily access to email notifications. 

An Introduction to the Telephone Consumer Protection Act 

In late 2013, SSEMC was the target of legal action alleging improper, unsolicited phone calls under the 

strict liability portion of the TCPA statute. Prior to this action, om industry viewed prepaid low balance 

phone calls as a member friendly service. We have no motivation to contact our membership except in the 

manner in which they request. Our automated systems were never used to sell any products, services, or 

debt collection. Although the case has since been resolved, SSEMC made substantial negative changes to 

our member notification offerings as a result of this complaint. A summary of the facts and circumstances 

around this case is provided below: 

o The mobile number at issue was provided to SSEMC by a prepaid member upon establishing 

service in April 2011. The member also provided an email address for future communications. 

o Member provided consent and verified phone number at least seven times through a series of 

consumer initiated phone calls to SSEMC. the last of which occurred in September 2011. 
25 


22980.013

o Unbeknownst to SSEMC, sometime in late 2011 our member changed phone numbers, but 

continued to receive electric service at the original service address. The member did not provide a 

new phone number, but continued to receive almost daily email prepaid low balance notifications 

until disconnecting service in April20 13. 

o SSEMC continued to send almost daily automated prepaid low balance and/or disconnect 

notifications to the phone number at issue, unaware that the phone number had been reassigned to 

another individual, who was not a member of SSEMC. 

o Daily notifications sound excessive, but reflects the member's practice of paying small amounts, 

often daily to maintain the lowest possible balance to maintain electric service. 

Unfortunately, the original prepaid low balance phone notification system did not allow for the consumermember to simply opt-out of future calls from a prompt within the phone call. However, additions or 

modifications to consumer notification preferences are available 24 hours a day through a live customer 

service agent. Even a non-member such as the plaintiff could have reached a live customer service agent to 

request the phone number be added to the do not call list. Our automated dialing system was also in its 

infancy and did not include a provision for opt-out or identifying reassigned phone numbers. We 

acknowledge that these systems should be improved and have continued to work with our service providers 

to develop a more robust member solution. 

The prepaid billing program at SSEMC was certainly not the first within our industry, but the rapid growth 

of our program meant that SSEMC would be one of the first to experience such growing pains as associated 

with reassigned phone numbers. Larger utility providers. with much larger budgets, have no doubt struggled 

to find fool-proof means to avoid calling reassigned numbers. Third-party database "scrubbers" are just 

making their way into our industry, but remain expensive and less than perfect solution for matching names 

and phone numbers. At best, the FCC has offered a patch-work or best practices' that should protect 

4 FCC Declaratory Ruling and Order 15-72, para. 86 
26 


22980.014

consumer-members and reduce TCPA liability concerns associated with timely identification of reassigned 

phone numbers. However, the strict liability tenets found within the statute leave no room for reasonable 

application of the law that would reflect the modernization oftelecommunications and balance the memberbenefit of phone notifications with cooperative best practices. In our case, the plaintiff received over 500 

unsolicited phone calls. The only reason these phone calls stopped is that our member, who originally 

provided and consented to receive notifications, eventually disconnected service more than a year after 

changing phone numbers. After 500 phone calls and 13 months; would it be reasonable to assume that 

anyone acting in good faith would find a way to file a complaint with a nuisance caller at least once? 

Existing TCPA regulations do not allow for such common-sense questions and subsequent reasonable 

application of the law. 

Impact to Consumer-Members 

By June 2014 Snapping Shoals EMC management reluctantly made the unpopular decision to discontinue 

all automated phone calls, which includes prepaid low balance notifications and automated disconnect 

notices. The only remaining channel to safely and efficiently communicate with our members is through 

email. Unfortunately, email only options can exclude a large portion of our membership as access is simply 

not available for some of our low-income and elderly populations that are less likely to have access to 

computers, smartphones, and especially reliable internet access. 

Every attempt was made to notify our members over multiple communication channels in hopes of avoiding 

any unnecessary service interruptions. Despite our best efforts to reach these vulnerable populations, our 

call center provided reports of numerous angry members that had grown to depend on the low balance and 

disconnect notifications. Our offer to update or add an email address for notifications was often met with 

more frustration as almost ten percent of our prepaid membership still do not have an email address on file, 

that is to say nothing of the member's desire to even access email on a daily basis. Our elderly and lowincome members without a smartphone and/or computer with internet access are limited to traditional, less 

consumer friendly options. These traditional options can be cumbersome when managing a bare minimum 
27 


22980.015

prepaid balance on a daily basis. To many people a daily phone call from their electric cooperative may 

sound ludicrous, but to our low-income and elderly populations these services were literally vital to keeping 

their homes warm in the winter and cool during the summer. 

The lack of phone notifications impacted more than just our prepaid members. Again, because of the 

uncertainty surrounding automated phone calls and the particularly high standard pertaining to reassigned 

phone numbers; Snapping Shoals terminated all automated disconnect notices as well. Less than seventy 

percent of all SSEMC residential members have an email address on file. Discontinuing this service has 

also been met with numerous complaints. In one instance. a consumer-member of almost twenty years 

returned after an extended time away from home to find power disconnected, freezers thawed, and floors 

ruined. The gentlemen had left home in late May before receiving the May electricity bill. Before leaving 

the member had instead "paid a little extra" to cover the anticipated May and June power bill. Unfortunately, 

the member underestimated his electric usage and service was disconnected around the first of July. He 

returned home a few days later to find that the hot Georgia sun had not only spoiled groceries, but also 

thawed liquids from the freezers had leaked onto the surrounding floor. Ultimately, the price to replace 

groceries, freezers, and floor covering was in the thousands of dollars. Snapping Shoals would not have 

disconnected service had we have known the circumstances. Before June 2014, this member would have 

received a courtesy phone call a few days before the pending disconnection. Snapping Shoals EMC offers 

numerous electronic options that allow our consumer-members to pay bills, monitor usage, and report 

outages from anywhere in the world and around the clock. In the end, each member is unique in how they 

prefer to handle their own affairs. We hope to one day be able to again offer a simple phone call to conduct 

business, as the member referenced above would have preferred. 

Future Development on Hold 

Exciting times arc ahead in the electric cooperative industry. For the tirst time in history we will have the 

ability to offer our consumer-members real-time usage information, pro-active outage updates with 

estimated restoration times, along with a host of communication preferences tailored to meet the 
28 


22980.016

consumer-members needs across a multitude of channels. However, the FCC and Congress has not gone 

far enough in helping businesses like Snapping Shoals EMC mitigate concerns over costly and 

burdensome TCPA litigation. Given that we are owned by our members, we agree that consumer rights 

are of the utmost importance and every effort should be made to prevent excessive and bothersome phone 

calls from unsolicited vendors. However, legitimate business communication should not be hindered in 

the process. Some reasonable legislative changes, perhaps even new legislation, should be considered as 

we learn how to manage and adapt to ever-changing consumer communication preferences in the 21" 

century. This hearing is a great first step and I look forward to taking your questions today and working 

with you to improve the TCPA moving forward. 

Thank you for allowing me to share our experiences. 
29 

Mr. WALDEN. Thank you, Mr. Mock. We appreciate the testimony, and sorry for what you all have gone through as a result of 

current status of this law. 

We will go now to Mr. Spencer Waller, interim associate dean for 

Academic Affairs and professor at Loyola University Chicago and 

director of the Institute for Consumer Antitrust Studies. 

Mr. Waller, thank you for being here. We look forward to your 

testimony. 

STATEMENT OF SPENCER WEBER WALLER 

Mr. WALLER. Thank you very much. Chairman Walden, Ranking 

Member Eshoo, and other members of the subcommittee, I appreciate the chance to be here today and discuss with you the important issues raised regarding the continued effectiveness of the 

TCPA and appropriate proposals for its reform. I thank you for also 

including our 2014 study of the TCPA in the record of these hearings. 

The only thing I would emphasize is that I am here in my individual academic capacity and that our institute is nonpartisan. We 

don’t take positions in individual cases. 

As I said, my comments are drawn from that 2014 study, and as 

the committee is aware, in the late 1980s, spurred by advances in 

technology, the telemarketing industry began to aggressively seek 

out consumers by the hundreds of thousands. They were able to do 

so as a result of then-technological advances involving robocalls, 

prerecorded messages, automatic dialing, and the development of 

what was then the fax machine. 

Consumers and businesses became overwhelmed with unsolicited 

telemarketing calls and fax advertisements. Calls for action grew 

louder. States enacted laws but could not reach the interstate aspects and international aspects of telemarketing. And after reviewing and debating 10 different pieces of legislation, Congress ultimately enacted the TCPA that we are here to talk about. 

And the TCPA was borne out of abusive telemarketing practices, 

made more invasive by the technology of that time. And since 1991, 

Congress has enacted other statutes relevant to the discussion of 

the TCPA, some of which have already been mentioned today. 

The original purpose of the TCPA was to regulate certain uses 

of technology that were abusive, invasive, and potentially dangerous and also to some extent cost-shifting to the consumers. And 

the TCPA effectively regulates those abuses by prohibiting certain 

technologies altogether, rather than focusing specifically on the 

content of the messages being delivered. 

And the expansion of the TCPA into areas outside of marketing 

and new technologies such as text messaging and cell phones over 

the years is consistent with its original purpose. 

On the enforcement side under the current scheme, private parties are largely responsible for the TCPA and have done so primarily through the class-action mechanism. This is in part due to 

the small statutory damages for any single plaintiff under the 

TCPA and the lack of statutory attorneys fees except through the 

class-action mechanism. 

And while this aspect of private enforcement has drawn some 

criticism because of the potential for large total damages faced by 

30 

certain defendants, the threat of class actions has also provided 

significant direct and indirect deterrence to violators and is the 

only meaningful source of potential compensation to victims of 

TCPA violations. 

Historically, the Federal Government, through the FCC, has only 

enforced the TCPA directly against violators to a limited extent, 

and yet the statute has been relatively successful in reducing the 

conduct it was enacted to regulate. 

Obviously, technology continues to evolve rapidly, and there are 

a number of trends that are emerging. The number of entities that 

are operating in intentional disregard of the TCPA are growing, 

and they are using more sophisticated technology to evade detection and enforcement. 

According to the Federal Trade Commission, about 59 percent of 

phone spam cannot be traced or blocked because the calls are routed through ‘‘a web of automatic dialers, caller ID spoofing, and 

voiceover-Internet protocols.’’ 

Although the traditional scheme of TCPA enforcement, with its 

strong reliance on private rights of action, has been successful in 

the past, two main issues are becoming clear. The private right of 

action is limited in terms of its ability to deter actions of intentional violators, and FCC direct enforcement through forfeiture proceedings is limited by its slow processes, limited resources, and limited remedies. 

So in order for the TCPA to continue to remain relevant and effective going forward, our report from 2014 makes the following 

recommendations: We recommended increasing government enforcement of the TCPA by providing State attorneys general with 

a larger incentive to bring TCPA cases and also authorizing the 

FTC to bring enforcement actions under the TCPA. It is involved 

in the enforcement of obviously portions of the laws relating to abusive telemarketing and is also the prime enforcer of most of our 

country’s consumer laws, and we think they are better able to tackle this problem in concert with the FCC. 

We also recommended increased uniformity of the application of 

the TCPA by encouraging more frequent and quicker FCC 

rulemakings, focus more on the definition of terms and ambiguities 

in the law, less so with respect to carve-outs and exemptions for 

individual industries and actors. 

We hope to continue to protect cell phones by requiring express 

prior consent for any communication by call or text made to a cell 

phone. And we have other recommendations relating to the junk 

fax portion of the TCPA, which may also be of interest to the committee. 

We oppose efforts to remove or otherwise modify the private 

right of action in view of its importance in the enforcement of the 

statute, and we support placing increased restrictions both through 

law and through technology on entities that seek to manipulate 

caller ID. 

These recommendations and other issues are discussed more 

fully in our report. And I thank you for your time, and I am happy 

to answer any questions. 

[The prepared statement of Spencer Weber Waller follows:] 

31 


22980.017

Statement of Spencer Weber Waller 

Interim Associate Dean for Academic Affairs and Professor, Loyola University 

Chicago School 

Director, Institute for Consumer Antitrust Studies 

Before the 

Subcommittee on Communications and Technology 

Committee on Energy and Commerce 

U.S. House of Representatives 

September 22, 2016 

Chairman Walden, Ranking Member Eshoo, and other Members of the 

Subcommittee, I appreciate the opportunity to discuss with you today the important 

issues raised regarding the continued effectiveness of The Telephone Consumer 

Protection Act of 1991 (TCPA) and appropriate proposals for its reform. 

I am the Interim Associate Dean and a Professor at Loyola University 

Chicago School of Law. I am also the Director of the Institute for Consumer 

Antitrust Studies at Loyola (Institute) which seeks to promote a more competitive 

consumer friendly economy. I have taught and published extensively on issues 

related to consumer protection, antitrust law. and related issues. I provide this 

testimony in my individual academic capacity. 

My comments today are drawn from the published version of a 2014 

comprehensive study of the TCPA published in The Loyola Consumer Law 

Review1 and certain subsequent developments since the publication of that study. 

This study of the TCPA was made possible through a cy pres distribution 

following the settlement of a class action in the United States District Court for the 

Northern District of Illinois which involved claims under the TCPA. Following the 

settlement of the litigation, Senior Judge Hart sought proposals for cy pres 

distributions. The Institute sought and received certain of the cy pres funds 

distributed from that case to undertake the first comprehensive study of the TCPA 

and the effect of new technology. I am not aware of any further published 

comprehensive studies of the TCP A since that time. 

1 Spencer Weber Waller, Daniel B. Heidtke & Jessica Stewart, The Telephone Consumer Protection Act of 1991: 

Adopting Consumer Protection to Changing Technology, 26loY. CONS. L. REv. 343 (2014). 

1 
32 


22980.018

I. Background 

In the late 1980s, spurred by advances in technology, the telemarketing 

industry began aggressively seeking out consumers by the hundreds of thousands. 

Companies began using machines that automatically dialed consumers and 

delivered prerecorded messages ("robocalls"). Marketers also took advantage of 

another then new and increasingly available piece of technology known as the 

facsimile machine ("fax machine"). With the fax machine, marketers could send 

tens of thousands ofunsolicited advertisements ('junk fax") each week to 

consumers across the nation. 

Consumers and businesses became overwhelmed with unsolicited 

telemarketing calls and fax advertisements. Calls for action grew louder. States 

enacted laws, but could not reach the interstate practices oftelemarketers. After 

reviewing and debating ten different pieces of legislation, Congress enacted the 

TCPA. 

II. The TCPA 

The TCP A was born out of abusive telemarketing practices, made more 

intrusive by advances in technology. Originally, the TCPA imposed restrictions on 

the use of telephone lines for unsolicited advertising by telephone call and fax. The 

TCP A has since been expanded and adapted by administrative rule, judicial 

interpretation, and congressional amendment. 

Since 1991, Congress has enacted other statutes relevant to the discussion of 

the TCP A. Despite common justifications and purposes, Congress determined that 

certain media would be regulated diiierently. For example, the TCPA originally 

banned the practice of sending "junk fax." The justification for the ban was that the 

practice shifted the cost of advertising from the advertiser to the recipient. 

However, the practice of sending unsolicited commercial e-mail, which also shifts 

the cost of advertising from the advertiser to the recipient, was not banned but 

instead was regulated with certain "identification" requirements. 

The original purpose ofthc TCPA was to regulate certain uses oftechnology 

that are abusive, invasive, and potentially dangerous. The TCP A effectively 

regulates these abuses by prohibiting certain technologies altogether, rather than 

focusing specifically on the content of the messages being delivered. The 

expansion of the TCPA into areas outside of telemarketing and new technologies 

over the years is consistent with its original purpose. 

2 
33 


22980.019

Private parties arc largely responsible for the enforcement of the TCPA, and 

have done so primarily through the class action mechanism. This is in part because 

ofthe small statutory damages for any single plaintiff under the TCP A and the lack 

of statutory attorneys fees except through the class action mechanism. While this 

aspect of private enforcement has drawn some criticism because of the potential 

for large total damages faced by certain defendants, the threat of class actions has 

provided significant direct and indirect deterrence to violators and the only 

meaningful source of potential compensation to victims of TCP A violations. 

Historically the federal government has only enforced the TCP A to a limited 

extent, yet the statute has been relatively successful in reducing the conduct it was 

enacted to regulate. 

Technology continues to rapidly change and a number of trends are 

emerging. The number of entities that are operating in intentional disregard of the 

TCP A are growing, and they are using more sophisticated technology to help 

evade detection and enforcement. According to the Federal Trade Commission 

("FTC"), about 59% of phone spam cannot be traced or blocked because the phone 

calls arc routed through "a web of automatic dialers, caller ID spoofing and voiceover-Internet protocols." Although the traditional scheme ofTCPA enforcement, 

with its strong reliance on the private right of action, has been successful in the 

past, two main issues are becoming clear. The private right of action is limited in 

both incentivizing lawsuits against, and deterring the actions of, intentional 

violators; and FCC enforcement is limited by its slow processes and limited 

remedies. 

III. Recommendations for Keeping the TCP A Relevant and More Effective 

In order for the TCP A to stay relevant after twenty-five years, certain 

modifications and improvements can be made. We recommend improving federal 

and state government enforcement efforts and increasing the uniformity of 

interpreting the statute. The FTC's continuing work towards a technical solution to 

robocalls is commendable, and should be followed with respect to other types of 

media currently exposed to unsolicited commercial messages such as text 

messages and e-mail. FCC rule making procedures have in some way been helpful 

in applying the TCPA to new technologies and in other instances unnecessarily 

broadened exemptions to the application of the TCPA, particularly in the area of 

collection of student loan debt by government entities and their contractors. 

In order for the TCP A to continue to remain relevant and effective going 

forward, the 2014 Institute report makes the following recommendations: 
34 


22980.020

• Increase government enforcement of the TCPA by providing State 

Attorneys General with a larger incentive to bring TCP A cases and authorizing 

FTC enforcement actions under the TCP A; 

• Increase unifom1ity of application of the TCPA by encouraging more 

frequent and quicker FCC rulemaking procedures; 

• Continue to protect cell phones by requiring prior express consent for any 

communication (call or text) made to a cell phone; 

• Place a time limit on the Junk Fax Established Business Relationship; 

• Create incentives for fax broadcasting companies to determine whether the 

faxes they are sending on behalf of clients are in violation ofthe TCPA; 

• Rebuff ct1orts to remove or otherwise modify the private right of action; 

and 

• Place additional restrictions on entities that enable caller ID manipulation. 

These recommendations and other issues arc discussed more fully in the 

Institute's 2014 Report as published in the Loyola Consumer Review which I 

would request be entered in the record for this hearing. Thank you for your time. 

am happy to answer any questions. 

4 
35 

Mr. WALDEN. Thank you very much for your testimony. 

I will now go to our final witness, Mr. Richard Shockey, principal 

at Shockey Consulting. We are delighted to have you here, sir. 

Please go ahead. 

STATEMENT OF RICHARD SHOCKEY 

Mr. SHOCKEY. Chairman Walden—— 

Mr. WALDEN. Be sure to push the button on your microphone 

there. There we go. 

Mr. SHOCKEY. There we go. Chairman Walden, Ranking Member 

Eshoo, and members of this committee, thank you for the opportunity to speak with you today. 

My name is Richard Shockey, and I am a consulting telecommunications engineer by profession advising telecommunications companies, their supplier community, the investment community, and actually other national governments on any number of 

issues related to our communications networks. 

I am also the chairman of the board of the SIP Forum. SIP, or 

the Session Initiation Protocol, is the fundamental Internet building block by which all modern voice communications networks in 

the United States are designed around, including those deployed by 

cable, enterprises, including the Congress I might add, and advanced residential networks. 

I am only speaking for myself here and none of the other members of the SIP Forum, et cetera, et cetera. 

I have been a working member of the Internet Engineering Task 

Force for over 15 years, and I currently serve on the FCC’s North 

American Numbering Council, and I have previously served on the 

FCC’s Communications Security, Reliability, and Interoperability 

Council. 

I am here to discuss many of the technical issues involving 

TCPA, robocalls, caller-ID spoofing, which are interrelated with 

each other and inter-tangled with each other. This committee is 

clearly aware of the new Robocall Strike Force. Though I am not 

a member of the strike force, I am intimately aware of the work 

the engineering community is contributing to that effort and happy 

to share it with you. 

I look forward to answering your questions. 

[The prepared statement of Richard Shockey follows:] 

36 


22980.021

Prepared Statement to the U.S House of Representatives 

Energy and Commerce Committee 

Communications and Technology Subcommittee 

Modernizing the Telephone Consumer Protection Act (TCP A) 

By 

Richard Shockey 

Shockey Consulting LLC 

September 22, 2016 
37 


22980.022

Chairman Walden, Ranking Member Eshoo and members of the Committee, thank you 

for the opportunity to speak with you today. My name is Richard Shockey and I am a 

telecommunications engineer by profession and the principal of Shockey Consulting LLC, a firm 

specializing in communications technologies, especially those involving the voice networks. In 

addition, I am Chairman of the Board of the SIP Forum. SIP, or the Session Initiation Protocol 1

, 

is the fundamental Internet technology which all modern voice networks in the United States are 

designed around. Disclaimer: I am only speaking for myself here and my views may or may not 

be the same as those member companies of the SIP Forum. 

We arc all aware of the plague ofRoboca!ls and Ca!ler-lD spoofing. The two problems 

are linked. Many of us in the engineering community have been actively looking at this problem 

for many years now. Although there is no "Silver Bullet" here, better engineering can help and, 

in my humble opinion, there is engineering consensus on a path forward. 

The "spoofing" problem, in which callers alter the calling party number information 

transmitted with their calls, is a key challenge for two reasons. First, any blocking or filtering 

tool that identifies unwanted calls based on the calling party number can be bypassed by bad 

actors who can simply spoof numbers not on the blacklist. This means that any particular 

blacklist-based blocking or filtering tool can be defeated by robocallers. And the more widely 

deployed a particular blacklist becomes, the greater the incentive robocallers have to find ways 

to bypass it. Unfortunately, some of the recipients of the robocalls with spoofed legitimate 

numbers will report the legitimate number as associated with the robocall. The innocent 

customer to whom the number is assigned can find himself or herself on a blacklist and, thus, 

subject to having his/her calls blocked. We have seen this problem in e-mail SPAM remediation 

1 https://www.ietforg/rfc/rfc3261.txt 

2 
38 


22980.023

where a user's domain is blacklisted and the domain owner has no way of finding out who put 

them on a blacklist and, worse, no information on how they can get off a blacklist. I have 

personally dealt with that problem in the past. 

Part of the overall solution involves applying modern Public Key Infrastructure (PKI) to 

cryptographically "sign" every signaling message for calls and, ultimately, text messages in the 

United States in a process we define as Call Validation. Some of these concepts have come out 

of the Internet Engineering Task Force (IETF), and its STIR working group, and the SIP 

Forum/ATIS Joint Task Force on Network to Network lnterfaces. 2 

Second, we envision service providers could develop and eventually leverage modern 

data analytics technology and algorithms to attempt to determine if a call is a robocall or if it has 

been spoofed. This is the same class of data technology that the financial service industry uses to 

detect credit card fraud among others applications. On the basis of this data, we also envision 

that we could signal the consumer's telephone. or "user agent" as we call it, to display the results 

of this Call Validation Technology and empower the consumer to act accordingly. 

We also want to offer businesses and individuals the option to enhance the identification 

information contained in the call presentation (what you see when you are asked to answer a 

call). We believe there is enormous value in having a trusted. validated identification 

accompany a call or message. This is especially important for both National Security, as well as 

Emergency Preparedness (NS-EP) applications. 

This Committee is also aware that the robocall problem has an international dimension. 

Many of us in the engineering community believe that these Call Validation solutions may be 

adopted by other National Regulatory Authorities in a coordinated effort to combat the problem. 

2 http://www.prweb.comlrelcascs/20 14/SIPForum,NNl-TF/prweb l23158ll.htm 

3 
39 


22980.024

We know that much of the malicious traffic is coming from outside our borders and I believe 

these techniques can, and indeed must, be applied to international call/messaging gateways as 

well. 

For those consumers that do not have modern mobile smartphones or internet protocol 

(IP) based desktop phones or have access to modern SIP networks, what do we do? I am trying 

to speak to the problem of, "What about Grandma?", "What about Aunt Phoebe?". This is a 

more complicated problem. 

I believe Call Validation technology has positive benefits for our Law Enforcement 

Agencies that need effective "Track and Trace" mechanisms in the call signaling to track down 

the bad guys and shut them down. 

I wish to emphasize that none of these technical solutions would inhibit a consumers 

ligitmitate desire to enable privacy options in call display (Anonymous) that are currently in 

place. 

The Robocall Strike Force called by Federal Communication Commission Chairman 

Wheeler and Randall Stephenson, the Chairman of AT&T, is working on this engineering 

solution. Both Chairman Wheeler and Mr. Stephenson should be congratulated for this initiative, 

as well as all the companies that have agreed to participate. It is an extraordinary group of 

dedicated professionals. I am not a member of that Strike Force, but I am intimately aware of the 

technical inputs that the Strike l'orce is considering. Long ago the engineering community 

realized that part of the problem was that our voice communications system was a hybrid of 

classic Time Division Multiplexing/Signaling System 7, which is an ancient, decaying 30- to 40-

year-old technology, and modern SIP technologies. This mix has contributed to weaknesses in 

the core voice network itself that have, in part, exacerbated the robocall spoofing problem. 

4 
40 


22980.025

Although there is no "Silver Bullet" here, better engineering can help. Implementing those 

solutions will require leadership from service providers, their suppliers, Congress and the Federal 

Communications Commission. 

I understand the natural frustration that members of this Committee have with why these 

solutions have taken so long. It is complicated stuff. We have had to develop technologies that 

can be applied in the network while, at the same time, insuring the Security, Reliability, Integrity 

and lnteroperability of the existing system. Though this is not exactly changing the tires of an 

airplane at 30,000 feet, there are clements that are similar. In addition, the telephone network is 

undergoing a "Technology Transition'' from classic TDM/SS7 to SIP based networks that has 

been the subject of ongoing discussions at the Federal Communications Commission and here in 

Congress. I wish to emphasize that that Technology Transition needs to move forward with "all 

deliberate speed", since many of the solutions the engineering community proposes cannot be 

fully applied to legacy networks. 

This Committee is specifically looking at revising the Telephone Consumer Protection 

act (TCPA) to reflect modern realities, but the TCPA itself is not the only piece oflegislation 

that is in desperate need of revision. The Truth in Caller-ID Act also needs to be revised. 

Roboealls arc being facilitated because the call identification cannot be trusted. You cannot fix 

one problem without attacking the other. I am pleased to see H.R 2566 and H.R 2669 put 

forward. This is a fine start. In particular, H.R 2566 has proposed to require intermediate 

telephone call transit providers register with the FCC. I am deeply concerned that efforts to 

block robocalls do not complicate the ongoing problems of Rural Call Completion that this 

Committee is also concerned about. 

5 
41 


22980.026

The most important thing I can suggest to the Committee is that it express its intent to the 

FCC and our Law Enforcement Agencies with absolute clarity. The Commission should be 

authorized to investigate the feasibility of enabling new databases such as "Do Not Originate" 

and further rules that create indicators in the National Numbering Databases on when a number 

has been disconnected and when it could be available for reissuance. I would also like to see the 

FCC take further action on a proposal on what is often referred to as National Number Portability 

or the ability to take a telephone number and essentially keep it for life within the United States. 

12% of the US population moves every year and often have to disconnect a number when they 

move. 3 This would dramatically cut down on the volume of numbers being pulled out of service 

and subject to reassignment. 

This is just another one of the issues in the voice network Technology Transition that are 

interrelated and interconnected. 

I also note that the FCC made several recommendations in 20 II, including regulating 3rd 

party spoofing services. I would suggest that Congress consider revisiting some of those 

recommendations as well. 4 

The engineering community is capable of giving the industry and our regulators the tools 

they need to combat this problem, but this Committee needs to make sure that they can use these 

tools under appropriate "Safe Harbor" provisions. We need to protect those industries that alert 

consumers with various messages that affect our financial security and personal health. 

Legislation needs to give protection to those businesses that act ''In Good Faith" to contact their 

3 http://www.census.gov/newsroom/press-relcascs/20 15/cb 15-tps99.html 

4 https://apps.fcc.gov/edocs_public/attachmatch/DA-11-1 089A 1.pdf 

6 
42 


22980.027

customer without the endless threat of nuisance suits or endless regulatory burdens that require 

more and more lawyers to create ever more complicated exemptions. 

I am pleased to answer any and all questions and assist this Committee now and in the 

future. 

7 
43 

Mr. WALDEN. All right. Thank you very much. And you win the 

prize for the shortest testimony. We appreciate all our panelists 

here and for what you have shared. 

I have got a couple of questions that came my way. Obviously, 

we all don’t want the unwanted robocalls, the spoofing, all of those 

things, but I keep getting asked what is a robocall? What is an 

auto-dial call? And, Mr. Waller, maybe you can help because I 

haven’t been able to get a definitive answer that if I pick up this 

device called a mobile phone and in the address book push a number, it auto-dials. Some would argue that constitutes an auto-dial, 

a robocall. If I manually dial the number, some would argue, well, 

that gets around it, but others say not necessarily because the device is capable of doing that. Do you believe there is clarity in the 

law on this matter, and if so, which is it? 

Mr. WALLER. Mr. Chairman, it is a good question. I would have 

to go back and look carefully, particularly at the 2015 FCC omnibus rulings to see what their current position is and I don’t have 

that at the tip of my tongue. 

Mr. WALDEN. All right. 

Mr. WALLER. I would certainly take the position, I think, that 

manual-dial call on a device is a manual-dial call and would not 

be captured by the auto-dial—— 

Mr. WALDEN. Because one of the other issues that comes up is 

if you have a list of customers in a system and you need to communicate with them, does it really in today’s technology make sense 

that you have to hire people to manually punch in a number that 

otherwise could come down and mechanically be dialed. That is 

treated as a robocall because it is auto-dialed, right? 

Ms. Turano, you seem to be agreeing with me on this point. Is 

this something you all have run into? Mr. Mock? 

Ms. TURANO. You are right. I am nodding over here. 

Mr. WALDEN. Why? 

Ms. TURANO.I appreciate the question and I think there is an important distinction is because frankly of the cost related to those 

types of calls. For us to hire an employee to make manual phone 

calls, depending on the length of the call, it could be anywhere between $6 to $10. If it were an auto-dialed call, it could be anywhere 

between 35 to 65 cents. And so those are funds that could otherwise—— 

Mr. WALDEN. And you are allowed to make that call one way or 

the other, right? If you have permission into the cell phone and to 

use a cell phone number, then you can do the auto-dial? You could 

use technology like we all do with our—anybody have an address 

book with phone numbers? Anybody really know phone numbers 

anymore? Do you still go around in the wheel? I don’t think so, 

right? 

Ms. TURANO. Right, the—— 

Mr. WALDEN. But this antiquated law makes you do that, doesn’t 

it? 

Ms. TURANO. It distinguishes between a landline and a cell 

phone, yes. 

Mr. WALDEN. All right. Mr. Mock, what have you run into in that 

respect? 

44 

Mr. MOCK. Well, certainly, from Snapping Shoals’ standpoint, we 

operate at cost for our members, and any additional manual processes that are added ultimately would have to be passed along 

through our electric rates onto our members. 

Just to give the committee an idea of volume and our issue with 

prepaid—— 

Mr. WALDEN. Right. 

Mr. MOCK [continuing]. Particularly highlights the volume of 

phone calls. But Snapping Shoals’ 11,000 prepaid consumers in August of 2011 received in excess of 220,000 low-balance notifications. 

That is 23 notifications per member per month. 

Mr. WALDEN. Now, some people might say that is too much; I 

don’t want that. 

Mr. MOCK. I would absolutely agree, but we are dealing with a 

population that will quite literally pay $5 and $10 towards their 

electric account every single day. And so as we maintain, say, a 

$20 minimum balance and as that balance goes below $20, the 

member pays $10, that may only buy them a few days. In some 

cases with the lower payments, these members are receiving phone 

calls day after day after day and to have a small business such as 

ours place that volume of phone calls just simply is not feasible 

cost-wise or—— 

Mr. WALDEN. Are these calls your consumers actually want? 

Mr. MOCK. Absolutely. Since—— 

Mr. WALDEN. What happens if they fall behind? Does their power 

get cut off? And what does that cost them if that happens? 

Mr. MOCK. Because they are a prepaid member, there are no additional fees. At this point, once the balance falls below zero, the 

meter automatically disconnects. Once they make a payment, automatically comes on. 

Mr. WALDEN. All right. 

Mr. MOCK. Outside of the prepaid program, we have also experienced some difficulty with our regular consumers. Just a simple 

phone call for a member of 20 years goes out of town for 5 or 6 

weeks, forgot to pay the bill before he left—— 

Mr. WALDEN. Right. 

Mr. MOCK [continuing]. Paid a little extra as a matter of fact but 

not quite enough, he comes home to a house with thawed freezers, 

ruined floors, and in conversations, he simply wanted a phone call. 

Prior to June of 2014, he would have received a phone call. 

Mr. WALDEN. But because of the class-action lawsuits or whatever else—— 

Mr. MOCK. Absolutely, and—— 

Mr. WALDEN [continuing]. You have backed off doing that? 

Mr. MOCK. We have a strong practice of verifying phone numbers 

at every opportunity. 

Mr. WALDEN. Right. 

Mr. MOCK. And for us, the issue of reassigned phone numbers 

and the volume particularly that can stack up with a reassigned 

phone number is really where our—— 

Mr. WALDEN. All right. 

Mr. MOCK [continuing]. Material concern is. 

Mr. WALDEN. I wish I had more time. I would pursue that course 

because that is the next—— 

45 

Mr. MOCK. Thank you. 

Mr. WALDEN [continuing]. Big issue on my list. But we will go 

now to the gentlelady from California, Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman, and thank you to the witnesses. 

I think what I would like to do is just ask a straightforward 

question of three out of the four of you. Mr. Waller, you made recommendations of what you thought we should do, and that is most 

helpful. So one or two sentenced, Ms. Turano. What do you recommend that we do to address what we are here for? 

Ms. TURANO. Sure. Thank you. 

Ms. ESHOO. What is your top recommendation, quickly? 

Ms. TURANO. Thank you. My top recommendation has to with a 

reconciliation comparing the language within TCPA and certain 

language within HIPAA. They are both statutes that govern this 

practice and the Medicare Advantage and Medicaid programs. 

However, there is a disconnect—— 

Ms. ESHOO. I have it. I got it. OK. 

Ms. TURANO. Thanks. 

Ms. ESHOO. Thank you. Mr. Mock? 

Mr. MOCK. Thank you. I think our top recommendation simply 

would be to introduce some measure of reasonability in application 

into the law. Additional exemptions—— 

Ms. ESHOO. But something specific. I understand everybody will 

say here, even if they disagree with each other, that they are all 

reasonable, so be specific. 

Mr. MOCK. Thank you. The definition of called party at this particular point in time leaves absolutely no liability on the called 

party, and in our case, whenever the called party is not the intended, the reasonable application that might ask a—— 

Ms. ESHOO. Well, I understand—— 

Mr. MOCK [continuing]. Called party—— 

Ms. ESHOO [continuing]. What you are talking about, but in your 

written testimony, if I read it correctly, you all made 500 calls over, 

I think, 13 months to a reassigned number. I mean, 500 calls and 

you want to put the burden on the person that receives the call? 

Is that what you are saying? 

Mr. MOCK. Five hundred phone calls absolutely sounds excessive. 

Again, these—— 

Ms. ESHOO. Well, it is excessive. 

Mr. MOCK. These are members that have requested these daily 

notifications. If a member does not receive a notification, their 

power is out. In this particular case a reasonable application of the 

law might have looked at this case and just asked the question 

would it be reasonable—— 

Ms. ESHOO. Well, I understand reasonable, and I don’t know how 

we do this, but we can’t reshape TCPA based on your co-operative. 

We are going to have to look for something that is going to help 

you, but it is a very unusual, in my view, business model. 

Mr. Shockey? 

Mr. SHOCKEY. These are policy questions, and I defer to the other 

witnesses—— 

Ms. ESHOO. So ask the engineer and consultant? You don’t have 

even one—— 

46 

Mr. SHOCKEY. Well, I think you can’t look—— 

Ms. ESHOO [continuing]. Recommendation for us? 

Mr. SHOCKEY. There are a number of things I would bring up. 

The number one thing I would is you can’t look at TCPA in isolation. We are going to have to look at the Truth in Caller ID Act 

specifically. The act is creating a great deal of the problems with 

robocalls because the way it is constructed. 

Ms. ESHOO. But tell us the fix. Everybody is telling us the problems. We know what the end result of the problems. What do you 

recommend we fix? How would you do it? You are the expert. That 

is why you all came here to testify. 

Mr. SHOCKEY. There are issues involving what I would consider 

adding safe harbor, as well as—— 

Ms. ESHOO. Safe harbor for whom? 

Mr. SHOCKEY. Safe harbor for the entity making the calls. And 

the telecommunications companies really do need to safe harbor. It 

is also in good-faith provisions that in good faith here for these entities such as a co-operative and health care providers and financial 

institutions that if they are trying to do this is in good faith, they 

should have some reasonable protection from unwarranted lawsuits. 

Ms. ESHOO. And what is—— 

Mr. SHOCKEY. What is in good faith? 

Ms. ESHOO. Are there limits to what they do or are there—I 

mean, is it you just enter a safe harbor and then do whatever you 

want? 

Mr. SHOCKEY. No, that I think can be worked out—— 

Ms. ESHOO. There are financial institutions but then there are 

some that abuse. They never stop calling to market their goods. Is 

that considered safe harbor in your view? 

Mr. SHOCKEY. No, but safe harbor I would say there is a difference between marketing and also financial protection, which is 

I get occasionally both telephone calls as well as text messages 

when I make a purchase, say, for instance, over $500. I need that. 

I want that. And within reason I am willing to accept a certain 

amount of marketing materials one way or the other. It is a fine 

line. It is discretionary. 

However, I think that the problem we have seen in the act, in 

TCPA, is it has been unreasonable. And especially for smaller 

firms. It is one thing for AT&T or Bank of America or Dominion 

Resources to be able to protect themselves. It is another for a relatively small firm or manufacturing firm or a small electric co-operative to defend themselves against these kinds of class-action 

suits. 

My belief is we have to look at this as a larger machine. There 

is TCPA, there was the Truth in Caller ID Act. I believe the telecommunications firms are committed to injecting cryptographically 

secure material into the networks itself that begins to reduce the 

problem of spoofing and robocalls at its source. 

Mr. WALDEN. We need to—— 

Ms. ESHOO. Yes. I am waiting for him to finish. Mr. Chairman, 

can I just ask unanimous consent to place Electronic Privacy Information Center’s letter—— 

Mr. WALDEN. Sure. Oh, absolutely. 

47 

Ms. ESHOO [continuing]. In the record? Thank you. 

Mr. WALDEN. Yes, without objection. 

[The information appears at the conclusion of the hearing.] 

Mr. WALDEN. And I thank you for your answer. 

I will now go to the gentleman from New York, Mr. Collins, for 

questions. 

Mr. COLLINS. Thank you, Mr. Chairman. 

I think we are here today really talking about unintended consequences. And there is no perfect solution. There can never be a 

perfect solution. And certainly I appreciated Mr. Shockey’s comments about safe harbor, common sense, and really small businesses—I am a small business guy—who really live in fear of some 

of these class-action lawsuits and in some cases might be withholding the information that somebody—like Mr. Waller saying, if 

somebody is going to—for every purchase over $500 I would like to 

know it just in case, things of that sort. 

But my question, Ms. Turano, is in your business—in fact, health 

care today, patients come in, they are treated, they may have a 

high deductible plan. They may not even realize that. After they 

have come, they have gone, they are treated, I would have to expect sometimes left with people owing substantial money. And you 

are in business and have to stay in business based on cash flow 

and collecting money. And you are not a telemarketer, but I have 

to expect you worry about and are frustrated by making a followup call to someone who, you know, through ObamaCare or some 

other reason is stuck in a high deductible plan. They could owe you 

thousands of dollars. 

You need that money to stay in business and provide your service, and yet, under the TCPA what are you? Are you a collection 

firm, which you are not, or are you just trying to protect the financial interests for all your other patients, and unfortunately, having 

to call folks to say you owe us some money, based on your insurance plan and high deductible, others, could you just maybe comment on some of those unintended consequences relative to you 

providing health care, something we all know we need? 

Ms. TURANO. Sure. Thank you. And actually, the law provides 

that we do not make these types of phone calls to cell phones about 

payment. We make automated phone calls with consent for healthrelated purposes. So we are not behaving like a collections agency. 

In fact, we are only making calls, sharing health care information 

with the members. 

Mr. COLLINS. So what can you or can’t you do relative to try to 

collect money that is owed to you by a patient that has come in, 

been treated, and now they owe you money? 

Ms. TURANO. Well, I would assume use traditional other methods, whether that be sending them a bill in the U.S. mail or we 

certainly have the ability to, if there were a landline available, we 

could use that. But using an auto-dialer to a cell phone or using 

an auto-dialer to text a cell phone is not something that we would 

do to attempt to collect—— 

Mr. COLLINS. Which, again, as the chairman noted in his opening 

comments, as many as half of Americans now don’t even have a 

landline. 

Ms. TURANO. Correct. 

48 

Mr. COLLINS. Well, thank you very much. Again, it is the unintended consequences—I think really we all want the same thing. 

No one wants the annoying calls, trying to sell something but, 

where does the fine line come? And with the fear of litigation, at 

what point do good phone calls stop or reasonable phone calls? 

Mr. SHOCKEY. Congressman, I think what a lot of people are 

struggling with here are what are genuinely legitimate calls from 

people who have a prior business relationship. And what some of 

us are worried about, which is the really fraudulent calls that are 

attacking vulnerable populations, the aged one way or the other, 

those of us such as myself and the engineering community, we 

would like to crush the fraudulent calls immediately. Hang them, 

please. 

But these issues that you are bringing up, Congressman, there 

are fine lines here, and I certainly understand the frustration of 

small business owners that they are getting entrapped with a lot 

of ambulance-chasers—let’s put it bluntly—who are using TCPA to 

extract—it is fraudulent in its own sense to a certain extent. 

I am just a poor, dumb engineer here. It is very hard for me to 

distinguish issues involving policy versus issues involving engineering, but I certainly understand your concern. 

Mr. COLLINS. And I think this hearing is really an informational 

hearing to bring some of these issues forward. We are not going to 

solve the issues today, but your testimony is certainly much appreciated. And, Mr. Chairman, I think it is a very timely committee, 

and my time has run out so I yield back. 

Mr. WALDEN. The gentleman yields back. 

Ms. Turano, just before I go to Mr. Pallone, when you talk about 

sharing health care information, is that the results of a blood test? 

Is that what you are talking about? 

Ms. TURANO. Those are the types of calls I am talking about, yes. 

It could be a reminder to fill a prescription, to pick up your prescription. It could be a reminder to receive or to seek out preventative tests or screenings. It is those types of calls that I am—— 

Mr. WALDEN. OK. 

Ms. TURANO [continuing]. Talking about. 

Mr. WALDEN. All right. Thank you. 

Mr. Pallone. 

Mr. PALLONE. Thank you. I wanted to ask Mr. Shockey, in your 

written testimony you note that Congress can be helpful in ensuring that consumers benefit from the various technological solutions 

that can help reduce robocalls. Can you just tell me more specifically what technological steps you think Congress could take to better protect consumers and stop the robocalls? 

Mr. SHOCKEY. Thank you, Congressman, for your excellent question there. The technological solutions that we are proposing, the 

engineering community, basically looks upon the fraudulent 

robocall problem as essentially a form of cybersecurity attack. 

Therefore, we need to go into the core of the voice communications 

network and use modern cryptographic methodology such as public 

infrastructure to basically sign the caller ID, sign the CNAME 

data, potentially make more information about the call party available to the consumer. 

49 

One of the things that we are working very diligently on on a 

technology side is in those cases where there is a clear prior business relationship allowing for more information to be displayed to 

the consumer. We are looking at some things like a green check 

box which is this call has been validated, a big red check box, no, 

this is not really the IRS involved, some kinds of other form of visual indicators that the call, at least from the network’s perspective, 

has been authenticated from the called party, and we can do better 

things like track and trace one way or the other. 

Those are the technological solutions that we have. As for whether or not Congress needs to further enhance the existing portions 

of title 47, I am not sure at this particular point. The relevant sections of the act that I know of, which are 251(e)(1), which is plenary authority over the numbering plan. The Commission already 

has that. They use that for numbering plan administration, local 

number portability. 

I believe, at least in my own—I am not a lawyer and I don’t play 

one on TV so I can’t answer that question, but I think they actually 

have sufficient authority to act if other aspects of the statutes are 

clear as to what the true intent of Congress is. 

Mr. PALLONE. OK. Rather than fraudulent calls, I wanted to talk 

about telemarketers that we never want or we never asked for. 

And, Professor Waller, you note in your written testimony that 

Congress should require that telemarketers receive express consent 

from consumers before they call their cell phones. Can you explain 

why you think strong consent is so important for consumers? 

Mr. WALLER. Yes. Thank you. I think that the requirement of 

consent has been a core provision of the TCPA from the very beginning, and I would urge that it be strengthened if anything. 

The situation that Chairman Walden referred to with respect to 

text messaging, making temporary job opportunities available is a 

perfect illustration of how valuable it is when the consumer has 

consented and how it is simply unwelcome—perhaps not harassing 

but simply unwelcome and invasive in their lives if they have not 

consented. 

And some of the examples and many of the horror stories that 

are presented are really about consent, and services are valuable 

if the consumer has consented and services are unwelcome and 

telemarketing is unwelcome when they haven’t, and that is a critical component of the act. 

Now, some of the other horror stories that have been presented 

are not about consent but about reassigned numbers and reaching 

out to people who perhaps they intended to get someone who had 

given consent but they didn’t reach someone, and in that case, the 

person they reached has not consented. There are still cost consequences to the 75 million consumers who have some form of prepaid cell phones. These calls are unwelcome. And it is the caller or 

the people they use who are the best cost-avoiders in that circumstance using currently available databases and some of the 

things that are in development that Mr. Shockey has talked about. 

Mr. PALLONE. Let me just ask quickly. The FCC has been issuing 

more rulings on the TCPA recently. Do you think this recent uptick 

in FCC action has been beneficial for consumers? 

50 

Mr. WALLER. I think it has. I think the 2015 omnibus ruling has 

been helpful by focusing on certain definitions, in particular, this 

reassigned number issue, the question of vicarious liability and the 

definition of auto-dialers that Chairman Walden was asking about. 

I think rulemaking by its very nature is a lengthy process and I 

commend the FCC for doing the best job it can, but it is really hit 

with a flood of petitions over and over again by the firms or industry seeking special treatment. 

Mr. PALLONE. Thank you. Thank you, Mr. Chairman. 

Mr. WALDEN. OK. The gentleman’s time is expired. 

I now go to the vice chair of the subcommittee, Mr. Latta. 

Mr. LATTA. Well, thank you, Mr. Chairman, and thanks to our 

panel for being here this morning, appreciate it. 

Ms. Turano, if I could start with you, in your testimony you stated that health care-related texts and calls lead to more engaged patients, better patient outcomes, and lower health care costs for consumers. It seems obviously that public health and safety notifications, along with individual health reminders, are helpful and important. Under current law, am I right to believe that these types 

of notifications are underutilized due to liability risks? 

Ms. TURANO. Yes, sir, I believe that is accurate. 

Mr. LATTA. Let me follow up then. How can we better update 

then the TCPA to ensure that actors with good intentions are able 

to reach the consumers and patients to better serve them? 

Ms. TURANO. Sir, currently, there is an exemption within the 

TCPA that is extended to health care providers to make these 

types of phone calls that I have been referring to. Unfortunately, 

that is a vague term. Within the HIPAA statute, however, there is 

language that could be imported that is far more clear and has a 

much more specific definition, and that is a term called HIPAA-covered entity. If that language were to be imported within the TCPA, 

that would make things much more clear for companies like 

WellCare, and that would allow us to make these types of phone 

calls. 

Mr. LATTA. Well, I was going to follow up on that. And let me 

ask you this because under HIPAA is it more clear for landlines 

than it is for cell phones? 

Ms. TURANO. Is it more clear within HIPAA for landlines—— 

Mr. LATTA. Right, is that—— 

Ms. TURANO [continuing]. Or cell phones? HIPAA covers all 

health care communications. It does not make a distinction between cell phones and landlines from my understanding. 

Mr. LATTA. OK. But is there any type of confusion out there 

today for folks out there then—— 

Ms. TURANO. Operate—— 

Mr. LATTA [continuing]. If you are looking on the cell phone side? 

Ms. TURANO. No. 

Mr. LATTA. There isn’t? So there is not a problem then for people 

that—especially for you all to go to contact folks on that and 

then—— 

Ms. TURANO. Well, if we were operating under HIPAA guidelines, 

those are very clear, and it is very prescriptive about what we can 

say, whom we can contact, how, and why. If those types of guidelines were transferred over to be consistent with the TCPA, it 

51 

would be much more straightforward with us. There would be no 

gray area in terms of who we can contact, whether it is a landline 

or a cell phone. 

Mr. LATTA. OK. Thank you. 

Ms. TURANO. Thanks. 

Mr. LATTA. Mr. Waller, I am wondering, how many of the complaints—and maybe if you might know this, how many of the complaints that the FCC and FTC receive are from the same numbers, 

any idea? Do we have any kind of knowledge out there as to who 

the bad actors are out there that are making a lot of these calls 

that people receive? Is there a way to find that out? 

Mr. WALLER. It is my understanding that the way the FCC 

tracks complaints on this issue that they accumulate complaints 

with respect to specific numbers and senders when they can identify them. So I believe the FCC can provide that information. I am 

not clear on how the FTC tracks robocall complaints, but I am 

aware that they receive between 200,000 and 300,000 per month. 

Mr. LATTA. All right. Thank you. 

Mr. SHOCKEY. Congressman, can I address some of that because—— 

Mr. LATTA. Yes. Yes. 

Mr. SHOCKEY [continuing]. It is slightly tactical? 

Mr. LATTA. Yes. 

Mr. SHOCKEY. It is correct that the way that the FCC and the 

FTC track this is via the number, but the number is inaccurate because it has been spoofed—— 

Mr. LATTA. Right. 

Mr. SHOCKEY [continuing]. In most of the cases. 

Mr. LATTA. And as the chairman mentioned in his opening statement that we just passed out of full committee—— 

Mr. SHOCKEY. Correct. 

Mr. LATTA [continuing]. The bill especially on the spoofing end, 

correct, yes. 

Mr. SHOCKEY. And they are coming in through intermediary providers and the current legislation, which was passed yesterday, 

that requires intermediary transit providers to identify themselves 

with the FCC makes a great deal of sense. 

What we do know anecdotally, by the way, is that the number 

of actors creating particularly the fraudulent robocalls is in fact relatively small. They are quite sophisticated and I might add I have 

done consulting work for the CRTC in Ottawa and Ofcom in the 

United Kingdom, and on a per capita basis the problem in Canada 

and in the United Kingdome is in fact worse. And the technical solutions that we are looking at deploying may actually have international implications as well and offer United States leadership to 

our friends, allies, and partners, on this area as well. 

One of the things that I know law enforcement is concerned 

about is this track-and-trace issue and the call validation technology that we want to interject into the network should be able 

to provide law enforcement with considerably better tools than 

what they have now. 

Mr. LATTA. Yes. Thank you very much, Mr. Chairman. My time 

is expired and I yield back. 

52 

Mr. WALDEN. I thank the gentleman. And we have a list for the 

committee at some point here of the conflicts in statute that require people to make calls that then put them in conflict with 

TCPA. We do have that, too, as part of our discussion. 

Mr. Doyle. 

Mr. DOYLE. Thank you, Mr. Chairman. 

Mr. Waller, I want to follow up on Mr. Pallone’s questions about 

expressed consent. I want to ask you if you think we need to reexamine the rules about prior express consent through an intermediary because it seems to me recent court cases seem to affirm 

the notion that debt collectors can harass consumers even when 

they have not explicitly been given consent to do so. 

So I am concerned that this practice of consent through a third 

party sometimes leads to loopholes where consumers are harassed 

by debt collectors or advertisers in situations that they haven’t expressly consented to. What problems do you see in this practice and 

how would we deal with that? 

Mr. WALLER. I share your concern. Consent should mean express 

consent expressed in a reasonable fashion that is part of the TCPA. 

There is growing amount of case law, plus the notion of reasonableness as an accepted standard throughout consumer protection law, 

most of American law. Third-party consent I think should be extremely limited or simply abolished whenever humanly possible. 

The area that you talked about particularly with debt collection 

is one of the top areas of consumer complaints. I think it is unfortunate that there was a carve-out for debt collection from the Federal Government or its contractor recently in the Budget Reconciliation Act. 

So I think the number of people who are now exposed to those 

calls are certainly greater. It is 60-some million people depending 

on which debt programs you are talking about. So I would like to 

see a return to the definitions that were used when consumers directly consented, whether it is in writing or some other fashion 

that can be legitimately recorded by the sender so they get the information they want and simply not be deemed to consent by the 

actions of a third party. 

Mr. DOYLE. Thank you. Let me ask you, historically, phone carriers have had an obligation to connect all phone calls, but recently, when the FCC loosens this restriction in order to promote 

the development and deployment of robocall-blocking technologies, 

I want to ask you, do you think the common carrier exemption 

should be reexamined as there will be an onus on carriers to connect the right calls? What safeguards are necessary to ensure that 

carriers aren’t overzealous in their call-blocking? 

Mr. WALLER. I think in some ways Mr. Shockey may be better 

able to answer that than I do, but I do think it is a combination 

of legal and technological solutions, so the gold standard would be 

a single rule that applies across all technology platforms, whether 

it is landlines, whatever is left of fax machines, cell phones, and 

whatever is yet to come—and e-mail obviously—where a consumer 

can opt out and be done with it where we would be, in my view, 

aiming for a universal do-not-contact register, not just do not call, 

and that obviously involves a sensible drafting of interaction of 

legal and technological requirements. 

53 

Mr. DOYLE. Mr. Shockey, do you want to answer? 

Mr. SHOCKEY. I agree with Mr. Waller completely, Congressman. 

I have serious problems with blacklists. We have problems with 

blacklists in the past in this country in one way or the other. The 

problem in getting on a blacklist is how do you get off of it, and 

I have personally run into this problem myself trying to send email 

to this committee because my domain, Shockey.us, was thrown into 

your junk mail pile and how do I get off. 

Ms. ESHOO. And look it, you got here. 

Mr. SHOCKEY. I got here, yes. I had to use my Gmail account. 

But these are the kinds of things that concern me about blacklisting, which is why those of us in the engineering community 

have tried to look at this from a much more holistic point in the 

core of the network, namely, that the originating call is cryptographically signed by the call originating network, it is authenticated and verified by the terminating network, and that the call 

detail records and the call routing records reflect that so that we 

have got appropriate track-and-trace mechanism here. 

And recourse in the event that you are thrown into a black hole 

has to be somehow constructed either possibly through regulation, 

hopefully by best current practices among the service providers one 

way or the other. If we march down this road, we are very, very 

concerned about that and we know where the problem is. 

Mr. DOYLE. Thank you. Mr. Chairman, thank you. 

Mr. WALDEN. Thank you, Mr. Doyle. 

We will now turn to Mr. Long from Missouri. 

Mr. LONG. Thank you, Mr. Chairman. 

And, Mr. Shockey, I hear from constituents about robocalls, as 

everyone else does, and we all find them extremely annoying, I believe. Finding a solution, of course, is very important so my question is this: This issue seems to involve all segments of telecom, including the carriers, equipment-makers, standard-setting bodies, 

cable, voiceover-Internet protocol providers, basically everyone. 

Mr. SHOCKEY. Yes. 

Mr. LONG. You are nodding your head. So is it important to have 

these groups involved in finding a solution to stopping these unwanted calls? Is it important to have all these different folks at the 

table and involved? 

Mr. SHOCKEY. Well, thank you, Congressman. The answer to 

your question is absolutely. And in fact I personally have been involved in this for the last 4 years with our nation’s service providers. I have been involved in the tactical standards work directly 

involving all of this. Of course it is difficult to get all of these people to consensus. We are much like any other group of professionals 

in one way or the other. It is hard to get agreement, which is why 

it has taken so long. 

But I believe we have a general outline of a plan, and that is 

where we hope—and I believe the Robocall Strike Force, when it 

reports on October the 17th, can at least outline a plan. And this 

committee and the FCC can move forward with all deliberate speed 

in implementing those recommendations. 

Mr. LONG. OK. Thank you. But my point is that everyone needs 

to be involved in this process. 

Mr. SHOCKEY. And everyone is, sir. 

54 

Mr. LONG. Yes, OK. 

Mr. SHOCKEY. I guarantee you that. 

Mr. LONG. Ms. Turano, the types of calls that WellCare is making to its clients, you have mentioned it a few times but can you 

kind of just give an encapsulated what your company does, what 

these calls are? 

Ms. TURANO. Certainly. Thank you. 

Mr. LONG. Can you pull that a little closer to you? It has got a 

long cord on here. Pull her up. There you go. 

Ms. TURANO. Is that better? 

Mr. LONG. You bet. 

Ms. TURANO. OK. Thank you. The types of phone calls that we 

are referring to really are about health care reminders—— 

Mr. LONG. And that is something somebody would want to hear 

about? 

Ms. TURANO. One would think so, yes. 

Mr. LONG. OK. 

Ms. TURANO. Our members tend to be vulnerable older Americans, disabled Americans, or folks that have less access to resources, less access to an infrastructure, a support core if you will. 

And so we feel it is important to be able to make these calls to 

them. They increasingly rely on cell phones. We want to be able to 

help them with their health care, and this is an efficient and effective way of doing that. 

Mr. LONG. OK. Well, I think I agree and most reasonable people 

would agree that those are the type of calls that folks are anxious 

to have, glad to have prescription reminders, whatever they may 

be. But has the FCC’s order impacted WellCare’s calling practices, 

and if so, how? 

Ms. TURANO. Yes, absolutely. Currently, we do not make auto-dialer calls or texts to cell phones. That is a practice that there—— 

Mr. LONG. You mean you can still talk on a cell phone? You can 

still call? 

Ms. TURANO. We could call you on your cell phone—— 

Mr. LONG. Really? I didn’t even know you could talk on these 

anymore. I tell everyone to text me, and you are not allowed to 

text. 

Ms. TURANO. I would be happy to text you a reminder to go pick 

up—— 

Mr. LONG. You could even call me. 

Ms. TURANO [continuing]. Your prescriptions but—— 

Mr. LONG.. I haven’t talked on a phone in so long—— 

Ms. TURANO [continuing]. I am currently not allowed to do that. 

Mr. LONG. All right. Especially being from Mizzou, you know. 

Ms. TURANO. Yes, sir. 

Mr. LONG. Get that in there. So these patients will potentially 

not be able to get the information that they need for their health 

care, correct? 

Ms. TURANO. If they are relying on a cell phone, I am—— 

Mr. LONG. Which everyone does. 

Ms. TURANO [continuing]. Extremely hampered from being able 

to contact them. 

Mr. LONG. OK. I have another question here for you. In your testimony you highlight the importance of using cell phones to reach 

55 

all these—and you just now mentioned how important it is. Why 

not just communicate with mail or landlines? 

Ms. TURANO. Well, sir—— 

Mr. LONG. Do you know what a landline is? 

Ms. TURANO. I do, thank you. In fact, I think I might still have 

one. Because when you are talking about the members that we 

typically have, I think I mentioned that in many cases they have 

unstable housing, and therefore, they might not have a consistent 

home address so U.S. mail is not going to be an effective way to 

reach them. 

Relatedly, they might not have a consistent landline if they are 

not in stable housing, so therefore, those two methods can’t be 

guaranteed to be an effective way of reaching them. 

Mr. LONG. OK. Thank you. As they say, the commonsense problem is it is not common, and I think that some of these things we 

are looking at, a little common sense would help with the FCC. 

Ms. TURANO. Thank you. 

Mr. LONG. So, Mr. Chairman, I yield back. 

Mr. WALDEN. The gentleman yields back. 

The chair recognizes the gentleman from California, Mr. McNerney. 

Mr. MCNERNEY. Wow, what a great hearing, Mr. Chairman. 

Thank you. And I thank—— 

Mr. WALDEN. You got it. 

Mr. MCNERNEY [continuing]. The panelists. 

Mr. Shockey, I was really thrilled to hear that public-key cryptography is used to authenticate caller ID. 

Mr. SHOCKEY. It will be. 

Mr. MCNERNEY. Oh, it will be? OK. That was my next question. 

How widely adopted is that technology? Or when is it going to be 

adopted in a wide fashion? 

Mr. SHOCKEY. As Congressman Long pointed out, there are a lot 

of people here involved, obviously: Our nation’s carriers, the equipment suppliers, the Congress potentially, but certainly the Federal 

Communications Commission. We have what we believe is the outline of a plan and how long that plan will take to implement I 

would choose not to speculate about. 

Mr. MCNERNEY. OK. 

Mr. SHOCKEY. However, it is reasonable—public-key cryptography is used all over our economy. The electric meter on the side 

of your house uses PKI, your credit card uses PKI, obviously the 

Web browsers when you buy something from Amazon use PKI. 

This is proven, well-understood technology. 

We have the standards now pretty much ready to go. All they 

need is testing. They need to be put into the actual kit that our 

nation’s carriers have. We are very concerned that we don’t break 

what we already have. We need to maintain the security, the reliability, and the interoperability of at least what we have today 

when we inject this new technology in there, but we can do this. 

Mr. MCNERNEY. Well, thank you. I understand that another potential solution to unwanted and fraudulent calls is malicious call 

tracing. Can you describe that a little bit? 

Mr. SHOCKEY. Well, malicious call tracing is in fact partially 

solved by this call validation technology using PKI because the 

56 

basic concept—and I will just try and walk you through it. Basically, when you place a phone call from any access network—that 

would be cable or mobile or traditional landline or enterprise from 

within this building, the service provider would actually sign the 

underlying call signaling that says, yes, I am, well, AT&T and I 

want this other carrier to terminate the call. 

So it signs what is known as the SIP invite. It sends it along its 

merry way, and somewhere along the line level 3 gets the call. It 

uses PKI to verify that AT&T was sending this call and then terminates the call in the normal manner. So we actually now have an 

origination and a termination, cryptographically sound methodology for track and trace. 

Now, beyond that, we could actually display to the consumer 

validated, good to go. We could also display to the consumer such 

as on your mobile device, on your enterprise phone here in the Congress or on your television set if you are using advanced network, 

you know, more information about whether or not this call has 

been trusted or if it is valid or not. So empowering the consumer 

is one of the key advantages of trying to deploy this technology and 

give enforcement in law enforcement that are track-and-trace. 

Mr. MCNERNEY. So the trace back is another form of this technology is that—— 

Mr. SHOCKEY. Yes. 

Mr. MCNERNEY [continuing]. Right? 

Mr. SHOCKEY. Yes. 

Mr. MCNERNEY. And then I guess the last thing is the do-notoriginate. And again, they sound like they are all sort of based on 

the same technology, those three methods. 

Mr. SHOCKEY. Do-not-originate is a little bit different. 

Mr. MCNERNEY. Is it? 

Mr. SHOCKEY. That is going to require, I think, a little bit of 

study. I know the public safety folks are extremely concerned about 

do-not-originate because of the various phishing attacks on public 

safety institutions one way or the other. It is certainly worth investigation, and people are actively talking about it. And I certainly 

want to wait and see what the final report of the strike force is before making a determination, but it is technologically feasible. Let’s 

put it that way. 

Mr. MCNERNEY. What is the most effective thing we can do here 

then is to—— 

Mr. SHOCKEY. Clarity. Again, as has been discussed by better 

policy experts than I am, having clarity in the legislation. I think 

you also have to look at the Truth in Caller ID Act. You also have 

to look at some other aspects of current legislation. Truth in Caller 

ID Act is bound to the problem with TCPA. If we can’t secure the 

identity of the calls themselves, we can’t fix the problem. 

Mr. MCNERNEY. Mr. Chairman, I need another 5 minute but I 

will yield back anyway. 

Mr. WALDEN. Thank you. We will have more time later on probably to talk about this issue. 

But we will now, let’s see, go to the gentleman from Florida, Mr. 

Bilirakis. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I thank the Ranking 

Member Eshoo as well for holding this very important hearing. 

57 

Modernizing the 1991 TCPA statute has long been a goal of 

mine, and I am glad the subcommittee is holding this informational 

hearing today. I appreciate it so much. 

Ms. Turano—and I apologize if these questions were already 

asked. I understand that WellCare filed a petition with the FCC 

seeking clarity on the TCPA provisions. Can you briefly outline the 

basis for WellCare’s petition, please? 

Ms. TURANO. Certainly. Thank you. WellCare and others filed a 

petition asking for clarity around some of the language within the 

2015 declaratory order. That order uses the term health care provider, which is basically undefined. And there is quite a bit of 

vagueness around what entities fall within that definition. 

What we have asked for instead is a reconciliation between the 

language in the TCPA and the language in HIPAA, which is our 

governing statute for health care communications from Health and 

Human Services. If FCC were to import the language and use the 

term ‘‘HIPAA-covered entity,’’ that would clear up a lot of confusion 

around who falls within that definition, what rules govern that 

communication, and that would go a long way towards clarifying 

the guidance. 

Mr. BILIRAKIS. OK. In your opinion, how long are petitions pending with the FCC before receiving a response? 

Ms. TURANO. Well, we filed our petition—WellCare and others 

filed our petition July 28 of this year. My understanding of FCC’s 

process is that there is a comment period for 30 days. Then, there 

are additional comment periods that stack up on top of that. However, my understanding is that there is no deadline or time frame 

within which the FCC has to respond. Therefore, we wait. 

Mr. BILIRAKIS. Wow. How would the failure—— 

Ms. ESHOO. We can help you with that. 

Mr. BILIRAKIS. Excuse me. 

Mr. WALDEN. We have a bill to fix that. 

Ms. TURANO. Thanks. 

Mr. BILIRAKIS. Let’s fix it. How would the failure to receive a 

timely answer hurt your patients? That is the bottom line. 

Ms. TURANO. Certainly. As we wait, the way our consumers are 

being impacted is that we are hindered from being able to use an 

efficient and effective means of communication with them. So that 

means for those of our members who rely on cell phones, we are 

not making calls or we are not using the auto-dialer technology to 

make calls to remind parents about getting their children vaccinated. We are not using the most efficient technology to remind 

members to get preventative health screenings. 

And in what I think is a very significant example, if we were to 

have a member—and we frequently do have a member—being discharged from the hospital, as I have said a couple of times already, 

if we have a member who doesn’t have a strong support system 

around them, which is frequently the case, we feel like we take on 

some responsibility for assisting them in the care provided after 

their discharge. So we would want to be able to contact them using 

this technology via cell phone to remind them to get their medications, to remind them to take them as the doctor prescribed them, 

to remind them about proper wound care and follow-up care. 

58 

If we are able to do all that, it is only going to help their outcome 

versus if they are without those types of reminders. You are looking at a potential for infection, you are looking for a potential for 

a hospital readmission, which is a problem for the whole system, 

which is something we are hoping to avoid. 

So as we wait, we are severely hampered in our ability to be able 

to do that in the most efficient and effective way possible. 

Mr. BILIRAKIS. Thank you. To the panel—and you know I submitted questions to FCC Commissioner O’Rielly asking if he supports expediting petitions to provide clarity on obligations under 

the TCPA pending any congressional action. The commissioner expresses support for such efforts. Is this something that members of 

the panel can support since we don’t know how long it will take 

for Congress to act? But we will act. And I wanted to ask the panel. 

We will start with Ms. Turano, please. 

Ms. TURANO. Yes, sir. That is certainly something we would support. 

Mr. BILIRAKIS. Please, sir. 

Mr. MOCK. I think I can say absolutely we would support more 

timely response from the FCC. In our particular case there were 

facts within the lawsuit we were faced with that, had definitions 

been more clearly defined, the situation might have turned out 

very different, so absolutely. 

Mr. WALLER. Congressman, we are on record in supporting expedited review, but sometimes you don’t always get the answer you 

want. 

Mr. BILIRAKIS. Thank you. 

Mr. SHOCKEY. The answer is yes, that would be perfect. 

Mr. BILIRAKIS. Very good. Thank you very much. I yield back, 

Mr. Chairman. 

Mr. WALDEN. The gentleman yields back. 

The chair recognizes the gentlelady from Tennessee, the vice 

chair of the full committee, for 5 minutes. 

Mrs. BLACKBURN. Well, thank you, sir. And I am so pleased that 

we have the hearing today, that it is on the agenda. And sorry that 

I was late. We have had other hearings that we are dealing with 

this morning, and since our main room is under construction, we 

have to go to the Capitol and use a room there. 

Mr. Mock, I want to come to you. When we were preparing for 

this hearing and talking with some folks that are in the health 

care space and all, I was struck by how trial lawyers have seemed 

to use this as a piggy bank with the lawsuits. And looking at from 

2010 to 2015 there was a 940 percent increase in the lawsuits 

under the TCPA. And the average payout for an attorney filing one 

of those suits was $2.4 million. I mean, this is just unbelievable. 

That tells us something is terribly wrong with this process. 

So the Snapping Shoals experience, and you had said in your testimony although the case has since been resolved, Snapping Shoals 

made substantial negative changes to our member notification offerings as a result of the complaint. So I want you to elaborate just 

a little bit if you will for the record on your experience of being 

sued and how that movement, you know, how you followed through 

to that movement. I know you articulated the changes that you 

59 

made, but talk a little bit about that experience. Just one minute 

will suffice. 

Mr. MOCK. Well, thank you very much for the question. 

In our example, we really felt like these were communications 

that were requested by our member. At any time those notifications could be discontinued, numbers could be changed, and certainly as we have looked to the future, our goal is to provide more 

flexible notifications. 

I should say that over the last few years it has been a more-common-than-I-would-like practice to maybe see a 1-800 ad late at 

night for any unwanted communications. In our experience I really 

felt like it would have been a very reasonable thing for someone 

to have received 500 phone calls to complain at least once. And so 

I think that is where the good-faith provisions and safe harbor provisions—— 

Mrs. BLACKBURN. Got it. 

Mr. MOCK [continuing]. For small businesses—— 

Mrs. BLACKBURN. Yes. 

Mr. MOCK [continuing]. Like Snapping Shoals would be very important. 

Mrs. BLACKBURN. OK. Got that. 

Mr. Shockey, just a little bit on reassignment and the difficulty 

of these reassigned numbers and tracking that. Listening to all of 

this today makes you wonder why there isn’t a way to track reassignment more carefully or more easily so that companies can determine when there has been reassignment of a number. Do you 

have anything to add to that? 

Mr. SHOCKEY. Well, actually, there is one thing I would like to 

add. The problem of reassigned numbers is real. We do have numbering databases that are currently deployed. Obviously, the number portability database is one of them. These have been altered 

from time to time. They could be repurposed to be able to add some 

sort of a field in the databases on when they would have been 

modified in some way, shape, or form. I don’t think we necessarily 

need a new database. 

The other thing is one of the issues that is actually personal to 

me and I think is also relevant is I also am a big believer in national number portability, which is why can’t we just have one telephone number and keep it, basically whenever you move? Twelve 

percent of the entire United States population moves very single 

solitary year, and that is actually creating the churn in the system 

because even if you go from the west side of New York to the east 

side of New York, you actually have to change your phone number 

because you have actually moved out of a boundary. And that is 

actually pretty ridiculous for the consumer if you sort of ask me. 

So we in the North American Numbering Council have actually 

recommended to the Commission that they consider a notice of proposed rulemaking on national number portability, which could reduce the church that we see in the numbering plan quite a bit and 

increase the size of the North American Numbering Plan by 20 percent virtually overnight so that we don’t have the kinds of problems in 408 area code for constantly splitting and splitting and 

splitting one way or the other. 

60 

So it needs a little bit of study. I don’t necessarily want to recommend that in advance of where the strike force could be reporting on that in the middle of October, but it certainly needs active 

consideration. 

Mrs. BLACKBURN. OK. I appreciate that. And as we wrap up, I 

would like for each of you to send me the three things you think 

we need to make certain we change as we look at the updates on 

the TCPA. I would just love to see that in writing. 

And with that, I yield back. Thank you. 

Mr. LATTA [presiding]. Thank you very much. The gentlelady 

yields back. 

And seeing no other members to ask questions, I have a letter 

from the American Health Insurance Plans, their comments that 

they submitted before the FCC and also the Credit Union National 

Association. And I ask unanimous consent that these letters be inserted in the record. 

[The information appears at the conclusion of the hearing.] 

Mr. LATTA. And on behalf of the gentleman from Oregon, the 

subcommittee chair; the gentlelady from California, the ranking 

member; and myself, we thank you all for participating in this 

panel today. It has been very informative and we appreciate it. 

And if there is nothing else to come before the subcommittee, we 

stand adjourned. 

[Whereupon, at 12:38 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Today’s hearing will focus on a topic that unfortunately most of us have dealt 

with on a personal level: pesky robocalls. Many constituents have contacted my office in search of a solution to stop the unwanted calls, and I am sure the same is 

true for my colleagues. Unfortunately, there just doesn’t seem to be a current solution that is entirely up to the task. Registering your number on the Do-Not-Call List 

simply isn’t enough these days, and it is time we begin a thoughtful dialogue on 

providing our consumers with relief. 

I’d like to thank Ranking Members Pallone, Eshoo, and Schakowsky for their letter requesting a hearing on this issue of modernizing the Telephone Consumer Protection Act and for adding their voices to the growing chorus for this outdated law 

to be updated to meet the challenges of the 21st century. The FCC, experts in industry and the business community, and folks back home are all in agreement that it 

is time to bring this outdated law into the 21st century. Our consumers no longer 

feel protected under the law; and with seemingly relentless attempts at fraud occurring over the phone, who can blame them? 

The TCPA is failing on two fronts. First, the number of bad actors who are intentionally disregarding the TCPA is growing, and until the act is modernized, consumers will be under siege by unwanted pre-recorded messages and solicitations. 

Second, recent reform attempts have instead captured unintended good actors in the 

crosshairs, who as a result, face litigation for non-compliance with the TCPA despite 

their good faith. 

While we are all probably familiar with the frustration that robocalls are causing 

us on the receiving end of the call, what some of us might be less familiar with are 

the challenges faced by legitimate businesses who have been inadvertently caught 

in the crosshairs of the TCPA. As bad actors increasingly flaunt the TCPA to gain 

access to millions of consumers’ phone lines, it is important that we recognize that 

there is a legitimate use of auto-dialing technology that doesn’t fall under the same 

malicious category. 

Unlike the well-known ‘‘Rachel from Card Services’’ scam, you can put a face on 

the folks operating in good faith-they look like your kid’s school, or maybe your doctor’s office, or even your local credit union. Businesses using auto-dialers often have 

good intent when contacting their customers, and moreover, their subscribers have 

come to expect and rely on these types of calls. 

61 

An update to the TCPA will do more to prevent unwanted calls and provide clear 

rules of the road for our legitimate businesses who are operating in good faith. We 

ought to have a holistic approach towards finding a solution that our constituents 

can rely on to protect them from unwanted calls, and that legitimate businesses can 

navigate without hiring an army of attorneys to ensure they are within the letter 

of the law just to be in touch with their customers. As you will hear, this is no easy 

task, but today’s discussion will be an important first step towards crafting a modern law that protects consumers. 

62 


22980.028

®

-- i ; 

' 

' 

STATE OF INDIANA 

OFFICE OF THE ATTORNEY GENERAL 

INDIANA GOVERNME:"JT CENTER SOU'IH FIFTH FLOOR 

GREG ZOELLER 302 WEST WASHI;\;GTON STREET • INDIANAPOLIS, I~ 46204-2770 

INDIANA A11'0RNEY GENERAL www.AltorneyGeneral.l:-.l.gov 

Hon. Greg Walden 

Chairman 

Communications and Technology Subcommittee of the 

House Energy and Commerce Committee 

Re: September 22, 2016 Hearing on 

Modernizing the Telephone Consumer Protection Act 

Dear Chairman Walden and members of the Subcommittee: 

TELEPHONE: 317.232.6201 

FAX: 317.232.7979 

Preventing unwanted and harassing calls to peoples' phones has been a priority for 

attorneys general across the country, and particularly for me. I have spent my tenure as Attorney 

General working to strengthen Indiana's Do Not Call laws and prosecute violators. Unwanted 

calls and robocalls are by far the most common complaint received by my office, with more than 

14,000 complaints received last year- half of which were specifically about robocalls. My office 

receives new Do Not Call and robocall complaints at a rate of nearly 50 complaints per day. If 

this rate continues, the number of Do Not Call and robocall complaints could exceed 18,000 in 

2016. The YouMail National Robocall Index estimates that more than 80 million scam or 

fraudulent calls arc made to U.S. consumers and businesses each month, resulting in annual 

losses of$8.6 billion.' 

Twenty-four of my fellow Attorneys General and I supportS. 2235, the HANGUP Act 

(House version: H.R. 4682), which would eliminate a recently enacted TCPA exemption 

allowing federal debt collectors to robocall cell phones. The HANG UP Act is intended to stop 

the barrage of debt collection robocalls that harass and frustrate our citizens who pay for such 

calls to their cellular numbers. 

Legitimate businesses should recognize that consumers arc barraged with unwanted calls 

and scams every day, and they do not want to receive unsolicited calls and texts. There are many 

ways to ensure their customers do indeed want their calls. In Indiana, companies arc expected to 

1 Source: https:/ /www. youmail.com/phoncw lookup/robocall-index/20 16/august 
63 


22980.029

STATE OF INDIANA 

OFFICE OF THE ATTORNEY GENERAL 

INDIANA GOVERNMENT CENTER SOUTH, FIFTH FLOOR 

GREG ZOELLER 302 WEST WASHI~GTON STREET • INDIANAPOLIS, IN 46204-2770 

INDIANA ATTORNEY GE!'.:ERAL www.AttorneyGeneral.IN.gov 

TELEPHONE: 317.232.6201 

FAX; 317.232.7979 

comply with the requirement that customers must opt in to receiving such calls and texts. This is 

a courtesy to their customers who have made it known up front that they do or do not wish to 

receive such calls. 

Some sellers are urging you to create a safe harbor to protect them from the bad acts of 

telemarketers calling on their behalf or generating leads. This is because courts have imposed 

strict liability on the sellers in several cases. In Indiana, there is no "safe harbor" for those who 

hire telemarketers or buy leads to sell their products. Our legislature clearly stated that liability 

extends not only to those who make calls, but also to those who cause them to be made. 

A process that reduces or eliminates calls and texts to people who do not want to receive 

them, while minimizing the potential tor fines and statutory damages for businesses that make 

good faith efforts to comply, should be encouraged. However, sellers should never be permitted 

to enjoy the fruits of non-lawfu I calls while ignoring the bad acts of their agents and lead 

generators. That is why 1 am urging you not to water down the TCPA by approving any 

amendment that lets sellers off the hook. 

U nwantcd calls are a huge annoyance to our citizens. It's frustrating when the federal 

government weakens state efforts aimed at protecting and serving our citizens. I urge Congress 

to stop allowing loopholes that legitimize robocalls and open citizens up to a barrage of 

unwanted or misplaced calls. 

Respccttiilly, 

Gregory F. Zoeller 

Indiana Attorney General 
64 


22980.030

_._ 

NAFCU 

3138 lOth Street North 

Arlington, VA 22201-2149 

P: 703.522.4770 1800.336.4644 

F: 703.524.1082 

nafcu@nafcu.org 

National Association of Federal Credit Unions I nafcu.org 

September 21, 2016 

The Honorable Greg Walden 

Chairman 

Committee on Energy and Commerce 

Subcommittee on Communications 

and Technology 

United States House of Representatives 

Washington, D.C. 20515 

The Honorable Anna Eshoo 

Ranking Member 

Committee on Energy and Commerce 

Subcommittee on Communications 

and Technology 

United States House of Representatives 

Washington, D.C. 20515 

Re: Credit Union Issues with the Telephone Consumer Pt·otcction Act 

Dear Chairman Walden and Ranldng Member Eshoo: 

On behalf of the National Association of Federal Credit Unions (NAFCU), the only trade association 

focusing exclusively on federal issues affecting the nation's federally-insured credit unions, I write today 

regarding tomon·ow's hearing on modernizing the Telephone Consumer Protection Act (TCPA). 

In a wurld of ever evolving communication methods, the TCPA presents an antiquated approach to 

communications regulations. Although once intended to protect consumers from pestering telemarketers, 

the Act now prevents consUlllers from receiving the valuable information they need. After 25 years, it has 

become clear that it is time for Congress to enact legislation to update the TCP A. Specifically, the TCP A 

does not take in to account membership-based businesses or the compliance burden that regulations place 

on small businesses. The intent of the TCP A is to ensure that all egregious offenders are grouped together. 

However, such grouping has inadvertently included good actors as well. NAFCU applauds Chairman 

Walden and Ranldng Member Eshoo for their efforts to present a more nuanced approach to updating the 

TCPA that takes in to account the needs of membership-based businesses. 

NAFCU appreciates the FCC's initiatives to clarify and modernize its regulations. Nonetheless, NAFCU 

believes that the FCC has hindered consumers' ability to receive important notifications and timely 

updates about financial developments that have the potential to impact their existing accounts, on both 

mobile and residential phone lines. The time has come to rewrite the provisions of the TCPA to account 

for the modem era of telecommunication. Unfortunately, the FCC's updated TCPA Order does not go fur 

enough and will make it more difficult for credit unions and other financial institutions to contact their 

members about potential identity theft or data breaches. NAFCU has urged the Commission to reconsider 

its action relative to credit unions and is pleased that the same concerns were also raised in the report 

language accompanying the FY '17 Financial Services and General Government Appropriations bill in 

the House. 

As we mentioned in our letter, dated September 11, 2015, along with five other financial services 

organizations, the FCC's Order is detrimentally impacting consumers. NAFCU continues to engage the 

FCC with the concems of our member credit unions and would like to share NAFCU's July 16, 2015, 

letter to the FCC as well as subsequent letters, dated August 31,2015, and May 2, 2016, regarding the 

FCC's Order. Attached please find those letters. 

NAFCU I Your Direct Connection to Advocacy, Education & Compliance 
65 


22980.031

On behalf of our nation's credit unions and their nearly 105 million members, NAFCU would like to 

thank you for holding this important hearing. NAFCU looks fmward to working with you to bring 

positive changes to the TCP A. If my staff or I can be of assistance to you, or if you have any questions 

regarding this issue, please feel free tn contact me, or NAFCU's Associate Director of Legislative Affairs, 

Brad Thaler 

Vice President of Legislative Affairs 

cc: Members of tbe House Committee on Energy and Commerce, Subcommittee on Communications 

and Technology 
66 


22980.032

~ I National Aisociathm ---- of J1~doral Cretllt UniOU$ 

NAFCU 3130 lOth Street North Arlington, VA 22201-2149 

NAI'CU I Your Olrott ConnoeUon to Eduuotlon, AdvQCacy & Mvancomont 

July 16,2015 

The Honorable Tom Wheeler 

Chairman 

Federal Commtmloations Commission 

445 12th Street SW, 

Washington, DC 20554 

RE: Response to the Commissiot1's Declaratory Rullng and Order on the Telephone 

ConsutnC!' Protection Act 

Dear Chah•man Wheeler: 

On behalf of the Nallonal Assoclntlon of Federal C1·edlt Unions (NAFCU), the 011ly natlonal 

trade Hssociatlon focusing exclusively on federal Issues affectiug the nation's federally insured 

c!'edlt unions, I am Wl'iting to you regarding the Federal Communications Commission's (FCC) 

July 10, 2015 DeclaratOI'Y Ruling and 01•der (the OL'(Ier) to clal'lfy its intet•pt·etatious of the 

Telephone Consumer Pt'Otection Act (TCP A), While NAFCU and om· members appreciato the 

FCC's effort to clarify and model'nlze its regulations, the FCC must do mol'e to ensure that 

consumyl'S are able to receive important notifications and timely updates about flnanclal 

developments that w!ll impact their existing accounts, on both mobile and l'esldentlal phone 

lines. Unfol'tnnately, the FCC's Ot·der will make it more difficult fo1· credit unions and other 

financial lnstlttitions to contact theil· members about identity tl1eft or data breaches. 

NAFCU recognizes that the Commission adopted an exemption for "free end user calls" made by 

financial institutions, specifically fo1· the put•posc of: (l) calls intended to prevent frm1dulent 

transactions Ol' Identity theft; (2) data secul'!ty breach notifications; (3} measures consumers may 

take to prevent identity theft tbllowlng n data breach; nnd (4) money transfer notifications. 

However, the Ordel' creates technical questions that may be Impossible fot· a credit union to 

l'esolve such as whether ot· not the membet· will be charged fur such texts or calls by their plan 

provider, or if they will count against their plan limits, NAFCU believes that the FCC should 

provide mo1'0 flexibility to the prescriptive requirements fo1· financial lnstiM!ons using this 

exemption, especially because this exemption meant to 11pply in exigent circumstances to protect 

C0!1SUil101'S, 

NAFCU ls very com::erned about the FCC's expansive treatment of the term "automatic 

telephone dialing system" (auto-dialers). The FCC's Order defines auto-diale1's to Include 

broadly any equipment even if it "lacks the 'present ability' to diaf t·andomly m· sequentially" b\JI 

con be modified to provide !hose capabllities. This interpretation is very tro~lblesome since it 
67 


22980.033

Federal Communications Commission 

July 16,2015 

Pnge2of3 

remains unclear what type of technology is actually covered. NA FCU and our members believe 

that the vogue standm·d for what qua[ifles as an auto-dialer, and the vague definition of 

commercin! pm·pose will ulthnately stop credit unions from making impot·tant communications 

to theh· members about tholt• flnanclalaccounts for feat• of violatit1g the t·egulation and possibly 

lncut•ring substantial !lability. 

Furthet•more, NAFCU has serious concems about the Commission's antiquated regulations that 

create distinctions between mobile and residential phones. An increasing munbet• of consumers 

do not have a tmditional home phone lines. As cell phones replace landlines, credit union 

members expect to receive the same scl'V.ice from their cl'edit union as they would if they had a 

residential 1\llephone number listed. For mobile phone lines, tlte FCC requires priOl' express 

Wl'itten consent for all automated calls t'egardless of the put•pose of the call, while calls to a 

residential phone line can be made for lnfot'mational purposes without Pl'ior consent. As the use 

of mobile and online technologies have largely t·eplaced residential phone tines as the most 

pe!'vasive mechanism of communie6tion between financial h1stitutlons and their consumers, the 

FCC must ensure that its rcg\Jb\tions do not have the unintended consequence of reducing 

consmners' access to vital information ubout theil• financial accounts. To prevent this, NAFCU 

believes that the l?CC must remove the distinction between !'Osidential and mobile phone lines as 

it 11pplies to making automated lnfot'lnatlonnl calls to consumel's about their existing acco\lnts. 

Additionally, the 01xlet· ol'eates an oveJ•Iy vague standal'd for revoking previous consem by 

stating that a consumel' may revoke their pdor express consent to receive autodialed and 

prerecorded calls through "any reasonable means." The ot·der prohibits a fuumciol institution 

i)·om controlling how the consume!' may revoke consent h1 a reuso11able munner. The FCC Ordol' 

thus creates a system where the question of whether a consumer's t't\Vocation is reasonable 

becomes a subjective issue, opening up financial institutions to insurmo1mtable liability. 

Finally, with regurd to the po1tability of wireless numbers from one consumer to anotbet·, the 

Commission's Order does not provide enough flexibility to credit unions with regards to these 

situations. Instead, the 01·dor places a strict bmden on credit unions when a consunwr's phone 

nmnbet· is reassigned because after only one ctdl to a reassigned numhor, callers are deemed to 

have "consti'Uctive knowledge" that the number was reassigned, HowevC!', tllis does not take Into 

consldemtlon whether the call actually t'esn!ted In any infom1ation that would Indicate thtl mnnbe:w 

was reassigned. For exampltl, not all consumers choose to personalize their voice mail messages, 

so one phone call m11y not yield any information !'Ointing to the reassignment. Credit unions 

could m11k\l one call to 11 reassigned numbet· and still have no reason to believe that consent is no 

longet· valid, yet Incur substantial liability even when acting lo good fuit11. 

NAFCU looks fotward to continuing n <linloguo with you and yom· staff 011 modemizing the 

FCC's hnplc;~mentatlon of the TCPA to ensure that it continues to allow oonsume1·s to have 

unhindet•ed access to !mpol'lant financial information. Should you have any questions ot· if 

would like to discuss ·these issues fu1thct', please feel free to contact me by tele hone !It 

or Kavltha Subramanian, NAFCU's Regulatory Affairs Counsel at···· 
68 


22980.034

Federal Communications Commission 

July 16,2015 

Page3of3 

Sincerely, 

CardeR. Hunt 

Seni01• Vice President ofGovemment Affah·s and General Counsel 

cc: The Honorable Mignon Clyburn, FCC Commissioner 

Tile Honorable Jessica Rosenworcel, FCC Commissioner 

The Honorable Ajlt Pai, FCC Commissionot· 

The Honorable Michael O'Rielly, FCC Commissioner 
69 


22980.035

~ I Natlonal Assoolatlon ---- of Federal Cr!ldltUnlons 

NAFCU 3l3810thStreetNorlb 

1\rlhlgton, VA 2220!·2149 

NAFCU I Your Olroct Coonectkm to Education, 1\dvonacy & 1\dvanccment 

August 3-1,2015 

The Honorable Tom Wheelet• 

Chairman 

Federal Communications Commission 

445 12th Street ffW, 

Washington, DC 20554 

RE: Lotte!' in Support of the Amel'ioan Bankers Association Petition for 

Reconsideration on the FCC's Rules and Regulations Implementing the 

Telephone Consumer Protection Act 

Deru· Chairman Whcele1·: 

On behalf of lhe National Association of Federal Credit Unions (NAFCU), the only national 

trade association focusing exclusively on fcdeml issues nfi'ecting the nation's federally insured 

c1•edit unions, I am writing to you l'egnt'ding the American Bankers Association (ABA) Petition 

filed on Augllst 8, 2015 with the Federal Comm\Jnications Comm!ssio11's (FCC 01' the 

Commission). This Petition requests reconsideration of the July 18, 2015 Declaratory R11Hng and 

Ordcl' (the Order), which sought to clarify its interpretations of the Telepllotl.C Consmne1· 

Protection Act (TCPA). NAFCU strongly supports the ABA's request for clatiftcation on the 

FCC's exemption for ''free end user calls" made by financial institutions. NAFCU and oui' 

members, like the ABA and other industry stakeholders, believe that the exemption as wl'itteu 

will stlll not allow fin[}Ilcial institutions to make time se.nsltive communications to their 

consumers about identity theft Ol' data breaches. 

In the Order, the FCC adopted an exemption fur financial institutions to contact consumers, 

specifically for the purpose of (1) calls intended to prevent fraudulent tt·ans11clions or identity 

theft; (2) data security breach notiftcutlons; (:l) measures consumers may take to prevent identity 

theft following a data breach; and (4) money transfel' notifications. However, these four kinds of 

calls and texts will only be exempt from the TCP A if the message is free to the oonsumer. The 

O.rdcr creates technical questions that may be impossible for a credit union to resolve such as 

whethe1· ot not the membe1· will be charged for such texts or calls by their plan provider, or if 

they will count against their plan limits. Furthermore in otder to meet the exemption, these calls 

and texts must (1) be made to the number provided to the financial institution by the member, (2) 

state the name and contact inf01mation of the financial institution, nnd {3) et'e stl'lctly limited in 

p11rpose, i.e. no telemal'keting, cross-selling, or similal' cotnpouent. The financial 1nstitution also 

cannot initiate more than thtee messages per event over a three·day period a11d must offer 

members "an easy means to opt out" of the messages immediately, NAFCU believes that the 
70 


22980.036

Federal Comm1mications Commission 

August 31,2015 

Page2of3 

f'CC should provide more :flexibility to the preset1ptive requirements for financi!lllnstitutions 

using this exemption, especially because this exemption meant to apply in exigent circumstances 

to protect consumers, 

Unfortunately, the FCC's Order will make it more difficult for credit unions and other financial 

Institutions to contact theit• members about identity theft or data h1'caches. As the ABA outlines 

In its Petition, this exemption improperly llmils the exempted calls to those sent to customerprovided mobile contact numbers. The condition limiting this exemption to mobile phone 

numbers sig11iflcantly reduces the value of tills exemption, since consumers can already receive 

urgent text messages on a non-free-to-end-user basis, if p1·ior express consent has been granted. 

The FCC must do more to ensm·e that consmnet's are able to receive impO!'tant notifications and 

timely updates about fmancial developments that will impact theh· existing accounts, on both 

mobile and residentiul phone lines. 

NAFCU and our members strongly urge the FCC to t•eevaluate the purpose of this "provided 

1mmber resll·iction," as it will greatly diminish to ability of credit unions and other fintmcial 

institutions from making fraud pl'evention calls to customer QOntact numbers. The FCC's Order 

explicitly stales that the exempted calls and texts to be sent only to "the wireless telephone 

1mmber pl·ovided by the customer of the financial institution." This restriction \umecessarlly 

impedes a :financial institution's ability to send customel' notil1cutions in the event of an exigent 

circumstance, especially if thel'e is doubt as to when the flnanci;d institution received the mobile 

pltone number from the consumer, 

NAFCU firmly believes that the provided-number resu·iction undermines the ability of 

institutions to prevent or reduee harm to as many customers as possible, As the ABA aptly notes 

in its Petition, this res!l'iotion willj)l'event financial institutions from sending messages to mobile 

numbers that customers pl'ovided in the cmu·se of a telephone call or face·lo·face conversation 

with an employee of the financial institution, This r~sn·lction implicitly imposes a stl'iot recordkeeping requirement on financial institutions to prove when tl;e phone number wns fhruished 

directly by their C\lStomers. Because of the serious thl'eat of litigation to calling a mobile number 

without proper doc11me.ntutlon, fimmciel institutions will not be able to notify customers of fraud 

and identity theft l'isks in a timely fashion. 

NAFCU has serious concems about the Commission's antiquated regulations that create 

distinctions between mobile and 1'esidential phones. An increasing number of consumers do not 

have a traditional home phone lines. As cell p~ones replace landHnes, credit union tne1nbers 

expect to receive the sume service from theh· credit union as they would if they had a residential 

telephone munber listed. As the use of' mobile and online technologies have largely replaced 

t·esidential phone lines as the most pervasive mcC:hunism of comnnmicalion between fmancial 

institutions and their consmnel.'s, the FCC must enSlll'C that its regulations do not have the 

unintended consequence of l'educlng consumel's' access to vital information about theh· financial 

accotmts. NAFCU believes that the FCC must remove the distinction between residential and 

mobile phone lines as 1t applies to the "free end uset· call" exemption for financial institutions. 
71 


22980.037

Fedet•al Com1mmications Commission 

Augu&i 31,2015 

Page3 of3 

NAFCU looks futward to co1ttinuing a dialogue with you and your staff on modernizing the 

FCC's implementation of the TCJ>A to ensure that it continues to allow consumers to have 

unhindered !lCccss to importaltt financial information. Sltould you have MY questions or if 

to discuss these issues fmiher, please feel free to contact me by tchmhone 

Kavitha Subramunian, NA11CU's Regulatory Affairs Counsel at 

CarrieR. Hmlt 

Seuiot• Vice President of Government Affairs arid General Co·unsel 

cc: 'I1te Honot·able Mignon Clyburn, FCC Commissiouet• 

The Honorable Jessica Rosenworcel, FCC Commissioner 

The Honorable Ajit Pai, FCC Commissionel' 

The Honorable Michael O'Rielly, FCC Commissioner 

Euclosure: NAFCU's July 16,2015 Response to the Commission's Declal'atol')' Ruling and 

Order on the TeleplJOne Co11sume1' Protection Act 
72 


22980.038

J. l National Association --- of Federal Credit Unions 

NAFCU 3138 lOth Street North ArUngton, VA Z220l-2149 

Nl\fC\ll Your Direct Connection to Education, Advocacy & Advanccme11t 

May2,2016 

Ms. Marlene H. Dortch 

Office of the Secretary 

Federal Communications Commission 

445 12th Street SW, 

Washington, DC 20554 

RE: Response to CG Docket No. 02-278 

Dear Ms. Dortch: 

On behalf of the National Association of Federal Credit Unions (NAFCU), the only national 

trade association focusing exclusively on federal issues affecting the nation's federally instu·ed 

credit unions, I am writing to you regarding the Federal Communications Commission's (FCC) 

public request for comment on the petition for declaratory ruling filed by Todd C. Bank (Bank) 

asking the Commission to clarify whether a telephone line in a home that is used for business 

purposes can be considered a "residential" line under the Telephone Consumer Pmtection Act 

(TCPA). See Petition for Declaratory Ruling to ClarifY the Scope of Rule 64.1200(a)(2), CG 

Docket No. 02-278, filed by Todd C. Bank on Mar. 7, 2016 (Petition). While NAFCU and our 

members appreciate the FCC's effort to clarify and modernize its regulations with respect to the 

TCPA, we are deeply concerned that the FCC's distinction between mobile and residential lines 

creates a discrepancy in the law. As a growing number of consumers use their mobile phone as 

their primary phone line, NAFCU urges the FCC to develop a common sense interpretation of 

"residential" line to ensure that consumers are able to receive important noti.fications and timely 

updates about developments from their financial service.<> providers on both mobile and landline 

residential phone lines. 

NAFCU and our members have serious concerns that the Commission's dated regulations related 

to the treatment of mobile phones will create significant risks for credit unions that wish to 

contact their members via telephone. In general, the TCPA regulates the way credit unions may 

use automatic telephone dialing systems, prerecorded voice message systems or "t•oboealls," 

messages sent to fax machines, and abandoned calls. The FCC treats advertisement and 

telemat'keting calls differently fi·om calls with another "commercial purpose." Tbe regulation still 

states that a phone call may not be made using an automatic telephone dialing system for 

telemarketing purposes unless the crt.,.dit union has the "prior express written consent" of the 

member, unless the call is made for "a commercial pul'pose but does not include Ol' introduce an 

advet'tisement or constitute telemarketing." See 47 CFR 64.1200 (a)(3). However, for mobile 
73 


22980.039

Federal Communications Commission 

May2,2016 

Page2of2 

phone lines, the FCC requires prior express written consent for all automated calls regardless of 

the purpose of the call. This distinction is problematic for many credit unions because more and 

more consumers today do not have landline home phones anymore, but still expect to receive the 

same service from their credit union as they would if they had a landline residential telephone 

number listed. Additionally, this situation can be even more complicated because the credit 

union may not know if the telephone number that the consumer has provided is for a residential 

landline or a cell phone. NAFCU urges the FCC to remove this antiquated distinction that does 

not adequately reflect the way consumers use telephone services today. 

As the use of mobile and online technologies have largely replaced retridential phone lines as the 

most pervasive mechanism of communication between financial institutions and their consumers, 

the FCC must ensure that its regulations do not have the unintended consequence of reducing 

consumers' access to vital infmmation about their financial accounts. In 2013, the FCC amended 

some of :its rules relating to telemarketing, including removing a previously-existing "established 

business relationship" for certain kinds of calls. However, the FCC has chosen to apply a 

different standard to mobile phone lines, and does not distinguish between calls for telemarketing 

and informational purposes to a mobile number. NAFCU strongly urges the FCC to further 

modernize its regulations to ensure that credit unions and other financial institutions are able to 

provide essential and timely information to consumers through mobile and texting channels 

about their existing financial accounts. 

NAFCU understands that the TCPA is a consumer protection statute. As the use of mobile and 

online technologies have become the most pervasive mechanism of communication between 

financial institutions and their consumers, the FCC must ensure that its regulations do not have 

the unintended consequence of reducing consumers' access to vital information about their 

financial accounts. 

NAFCU looks forward to continuing a dialogue with you and your staff on modernizing the 

FCC's implementation of the TCPA to ensure that it continues to allow consumers to have 

unhindered access to important financial information. Should you have any questions or if you 

would like to discuss 

Sullrarnanian, 

these issues further, 

NAFCU's 

please 

Regulatory 

feel free 

Affairs 

to contact 

Counsel 

me by 

at 

~ 

--or 

Sincerely, 

Executive Vice President of Government Affairs and General Counsel 
74 


22980.040

September 21, 2016 

The Honorable Greg Walden, Chairman 

The Honorable Anna Eshoo, Ranking Member 

Subcommittee on Communications and Technology 

Energy and Commerce Committee 

United States House of Representatives 

Washington, D.C. 20510 

Dear Chairman Walden and Ranking Member Eshoo: 

The undersigned non-profit organizations, representing millions of consumers, write to 

express our strong support for your interest in improving protections against unwanted robocalls. 

As you know, unwanted robocalls are currently the top consumer complaint to the Federal 

Communications Commission (FCC), and were the source of over 2 million complaints to the 

Federal Trade Commission (FTC) in 2015. 

We agree that more tools need to be brought to bear in the battle against the millions of 

unwanted, harassing, and illegal robocalls to which consumers continue to be subjected. In 

particular, we support the ROBOCOP Act, legislation introduced by Representative Jackie 

Speier (D-CA) (H.R. 4932) and Senator Charles Schumer (D-NY) (S. 3026). This legislation 

would provide important new incentives for carriers to provide consumers with call-blocking 

technologies and to eradicate caller-ID spoofing, which we believe is critical to addressing the 

runaway robocall problem. 

At the same time, we arc concerned that some proposals being put forward for discussion, 

such as altering the definitions of "autodialer" and "consent" under the Telephone Consumer 

Protection Act (TCPA), would seriously undennine the enforcement power of this fundamental 

law. Altering the definition of autodialer would have the effect of creating dangerous gaps in the 

law; the current definition reaches all of the telemarketing technologies used today. And altering 

the definition of consent would eliminate important incentives currently in place for callers to 

ensure that they actually have the consent of the called party. There are many technologies 

already in place that provide callers with data on whether the person from whom they have 

consent is still the current owner of the phone. Changing these definitions would be unfortunate 

steps backward, and would hurt consumers. 

Some in the calling industry evidently want to be able to make robocalls without the 

consent of the consumers called, and without liability for making even repeated and widespread 

mistakes. We urge the Committee to take utmost care not to make changes to the TCPA that 
75 


22980.041

would subject American consumers to tens of millions more unwanted, and currently illegal, 

robocalls. 

We would be happy to work with the members of the Committee on stronger protections 

to guard against unwanted, disruptive, and at times harassing, even fraudulent, robocalls. Please 

feel free to contact Margot Saunders of the National Consumer Law Center at 

msaunders@nclc.org or Maureen Mahoney of Consumers Union at mmahoney@consumer.org 

for further infonnation. 

Sincerely, 

Consumer Action 

Consumer Federation of America 

Consumers Union 

National Association of Consumer Advocates 

National Consumer Law Center 

Public Knowledge 

cc: Honorable Fred Upton, Chairman, House Energy & Commerce Committee 

Honorable Frank Pallone, Jr., Ranking Member, House Energy & Commerce Committee 

Members, House Energy & Commerce Committee 
76 


22980.042

Statement for the Record 

On behalf of the 

American Bankers Association 

Consumer Bankers Association 

Credit Union National Association 

Financial Services Roundtable 

National Association of Federal Credit Unions 

before the 

Committee on Energy and Commerce 

Communications and Technology Subcommittee 

United States House of Representatives 

September 22, 2016 
77 


22980.043

Statement for the Record 

On behalf of the 

American Bankers Association 

Consumer Bankers Association 

Credit Union National Association 

Financial Services Roundtable 

National Association of Federal Credit Unions 

before the 

Committee on Energy and Commerce Communications and Technology Subcommittee 

United States House of Representatives 

September 22,2016 

Chairman Walden, Ranking Member Eshoo, and members of the Committee, the 

American Bankers Association (ABA), 1 Consumer Bankers Association (CBA),2 Credit Union 

National Association (CUNA), 3 Financial Services Roundtable (FSR), 4 and National Association 

1 ABA is the voice of the nation's $16 trillion banking industry, which is composed of small, regional, and large 

banks that together employ more than 2 million people, safeguard $12 trillion in deposits, and extend more than $8 

trillion in loans. 2 Founded in 1919, the Consumer Bankers Association (CBA) is the trade association for today's leaders in retail 

banking- banking services geared toward consumers and small businesses. The nation's largest financial institutions, 

as well as many regional banks, arc CBA corporate members, collectively holding well over half of the industry's 

total assets. CBA 's mission is to preserve and promote the retail banking industry as it strives to fulfill the financial 

needs of the American consumer and small business. 3 CUNA represents America's credit unions and their more than l 00 million members. 4 The Financial Services Roundtable represents the largest integrated financial services companies providing 

banking, insurance, payment and investment products and services to the American consumer. FSR member 

companies provide fuel for America's economic engine, accounting for $92.7 trillion in managed assets, $1.2 trillion 

in revenue, and 2.3 million jobs. 

2 
78 


22980.044

of Federal Credit Unions (NAFCU) 5 (collectively, the Associations) appreciates the opportunity 

to submit a statement for the record for this hearing on the harm to consumers resulting from the 

outdated Telephone Consumer Protection Act (TCPA). As you arc aware, that statute prohibits, 

with limited exceptions, telephone calls to residential lines and calls and text messages to mobile 

phones using an automatic telephone dialing system (autodialer) unless the caller has the prior 

express consent of the called party. 

The Associations commend the Committee for holding this hearing. As we indicated in 

our letter for the record for the Senate Commerce hearing on May 18,2016, reform of the TCPA 

is urgently needed. Enacted 25 years ago to limit aggressive telemarketing and secondarily, to 

protect the nascent wireless phone industry, the TCPA was designed to provide consumers with a 

right to pursue an individual claim against an unlawful caller in small claims court and without 

the need for an attorney. Since then, the TCPA has been interpreted by the Federal 

Communications Commission (Commission) to apply, potentially, to any dialing technology 

more advanced than a rotary phone and to impose liability for calls to numbers for which consent 

has been obtained, but the number has been reassigned unbeknownst to the caller. With statutory 

damages of up to $1,500 per call, any call alleged to have been made using an autodialer and that 

is inadvertently made to a wireless number without documented consent can result in a class 

action lawsuit with a damage claim in the millions, if not billions, of dollars. 6 While the total 

dollar value of these class action lawsuits can be staggering, and frequently generate millions in 

fees for the attorneys that pursue the cases, these lawsuits rarely accomplish a substantial 

recovery for consumers. As the attached chart of recent TCP A settlements from one financial 

institution demonstrates, the median amount awarded to consumers would have been $7.70 if all 

class members submitted a claim. 

This risk of draconian liability has led financial institutions to limit-and, in certain 

instances, to eliminate-many pro-consumer, non-telemarketing communications, including calls 

to combat fraud and identity theft, provide notice of data security breaches, and help consumers 

5 The National Association of Federal Credit Unions is the only national trade association focusing exclusively on 

federal issues affecting the nation's federally insured credit unions. NAFCU membership is direct and provides 

credit unions with the best in federal advocacy, education and compliance assistance. 6 It is important to understand that these class action lawsuits accomplish little other than to enrich the attorneys that 

pursue them. As the attached chart of recent TCPA settlements demonstrates, the median amount awarded to 

consumer would have been $7.70 if all class members submitted a claim. 

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manage their accounts and avoid late fees and delinquent accounts. The balance Congress struck 

between protecting consumers and allowing routine and important communications between a 

business and its customers to occur has been lost-and, all too often, the very consumers 

Congress sought to protect are harmed. 

In our statement, we would like to highlight three critical points: 

? The TCP A, as interpreted by the Commission, has a detrimental impact on consumers 

by effectively preventing financial institutions from sending important, and often 

time-sensitive, messages to consumers. 

? The TCPA is out of touch with current technology and consumer communication 

preferences and expectations and prevents financial institutions from effectively 

serving consumers who wish to communicate by cell phone. 

? Congress should reform the TCPA by imposing a damages cap and mandating the 

establishment of a database of reassigned numbers. 

I. The TCPA Has a Detrimental Impact on Consumers by Effectively Preventing 

Financial Institutions from Sending Important, and Often Time-sensitive, 

Messages to Consumers 

Financial institutions seek to send automated messages to prevent fraud and identity theft, 

provide notice of security breaches, provide low balance and over-limit alerts, and help 

consumers avoid delinquency, among other beneficial purposes. Autodialers enable financial 

institutions to provide these important communications to large numbers of consumers quickly, 

efficiently, and economically. The Commission's recent interpretation of the TCPA, coupled 

with the threat of class action liability, discourages financial institutions from making these calls 

that benefit consumers. 

A. The Importance of Facilitating Important Communications to Cell Phone 

Users, Particularly Low Income Users 

Consumers today value, and increasingly expect, the convenience of wireless 

connectivity and the convenience of being able to use mobile financial services. Nearly 50% of 

U.S. households are now "wireless-only" with that percentage rising to 71.3% for adults between 

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25 and 29. 7 Similarly, CTIA-The Wireless Association reported that, as of year-end 2014, 

44.0% of U.S. households were "Wireless Only." 8 

This new reality has profound implications for how financial institutions communicate 

with consumers, especially those oflow and moderate incomes for whom a cell phone may be 

their only point of contact. Often, low income consumers strictly rely on their cell phone for 

Internet and other communications because purchasing multiple devices, such as land lines and 

laptops, can be prohibitively expensive. Research conducted by the Federal Deposit Insurance 

Corporation found that underbanked consumers prefer text messages to e-mails when receiving 

alerts from financial institutions because texts are faster, easier to receive, attention grabbing, 

and quicker and easier to digest. 9 Building on this research, the FDIC is exploring the potential 

for mobile banking to promote and support underserved consumers' banking relationships in part 

by increasing the communications and alerts sent to those underserved consumers that use 

mobile services. 10 The Bureau of Consumer Financial Protection also concluded that alerts to 

cell phones help consumers, including low income consumers, access financial services and 

manage personal finances: 

By enabling consumers to track spending and manage personal finances on their devices 

through mobile applications or text messages, mobile technology may help consumers 

achieve their financial goals. For economically vulnerable consumers, mobile financial 

services accompanied by appropriate consumer protections can enhance access to safer, 

more affordable products and services in ways that can improve their economic lives. 11 

Financial institutions want to serve their customers and members-and promote financial 

inclusion-by connecting with consumers who may use only cell phones for communications. 

7 STEPHEN J. BLUMBERG & JULIAN V. LUKE, U.S. DEPT. OF HEALTH AND HUMAN SERVICES, CTR. FOR DISEASE 

CONTROL AND PREVENTION, NAT'L CrR. FOR HEALTH STATISTICS, WIRELESS SUBSTITUTION: EARLY RELEASE OF 

ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY. JANUARY-JUNE 2015 (2015), available at 

http://www.cdc.gov/nchs/datainhis/earlyrclease/wireless201512.pdf(Tables 1 & 2). 8 CTIA-The Wireless Association, Annual Wireless !ndusl!y Survey. (last visited Dec. 1, 2015). 

http://www.ctia.org/your-wireless-life/how~wireless-works/annual-wirelcss-industrv-survcy. 

9 FED. DEPOSIT INS. CORP., QUALITATIVE RESEARCH ON MOBILE fiNANCIAL SERVICES FOR liNDERSERVED 

CONSUMERS (Oct. 30, 2015), at 21, available at htips://www.fdic.gov/about/comein/2015/come-in-2015.pdf. 10 FED. DEPOSIT INS. CORP., FIL-32-2016, REQUEST FOR COMMENTS ON MOBILE FINANCIAL SERVICES STRATEGIES 

AND PARTICIPATION IN ECONOMIC INCLUSION DEMONSTRATIONS 3 (2016), available at 

httrs://www. fdic.gov/ncws/ncws/financia!/20 16/till6032.pdf. 11 BUREAU OF CONSUMER FIN. PROT .• MOBILE FINANCIAL SERVICES: A SUMMARY OF COMMENTS FROM THE PUBLIC 

ON OPPORTUNITIES, CHALLENGES, AND RISKS FOR THE lJNDERSERVED, at 10 (Nov. 2015), available at 

http://files.consumcrfinancc.gov/f/20 1511 cfpb mobile-financial-scrvices.pdf (emphasis added). 

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The TCPA should not interfere with the efforts of these institutions to provide financial services 

to consumers of all economic levels. 

B. The Threat ofTCPA Litigation Unnecessarily Limits Several Types of ProConsumer Calls 

The threat of class action liability threatens to curtail the following categories of proconsumer, non-telemarketing communications made by financial institutions: 

(1) Breach Notification and Fraud Alerts 

With identity theft and fraud losses at all-time highs, 12 financial institutions are 

relentlessly pursuing fraud detection and prevention capabilities. A key component is autodialcd 

calling to consumers' wireline and mobile telephones, including text messaging to consumers' 

mobile devices, to alert consumers to out-of-pattern account activity and threatened security 

breaches. In addition, financial institutions are required to establish response and consumer 

notification programs following any unauthorized access to consumers' personal information, 

under Section 50l(b) of the Gramm-Leach-Bliley Act, as well as under the breach notification 

laws of 46 states and the District ofColumbia. 13 The volume of these required notifications, 

which average 300,000 to 400,000 messages per month for one large financial institution alone, 

cannot be accomplished at all, much less with acceptable speed, unless the process is 

automatcd. 14 In addition, identity theft victims have the right, under the Fair Credit Reporting 

Act (FCRA), to have fraud alerts placed on their credit reporting agency files, which notifY all 

prospective users of a consumer report that the consumer does not authorize the establishment of 

12 Jn 2015,781 data breaches were reported, a 27 percent increase from 2013. Press Release, Identity Theft 

Resource Center, Identity Theft Resource Center Breach Report Hits Near Record High in 2015 (Jan. 25, 2016), 

available at http://v.ww.idtheftcenter.org/index.php/ITRC-Surveys-Studies/2015databreaches.htm1. In 2014, 12.7 

million people were victims of identity lraud. AL PASCUAL & SARAH MILLER, JAVELIN STRATEGY & RESEARCH, 

2015 IDENTITY FRAUD: PROTECTING VULNERABLE POPULATIONS (Mar. 2015), 

https://w\vw. j a vel instrategy .com/ coverage-area/20 15-identity-fraud-protecting -vulnerable-populations. 11 Gramm-Leach-Biiley Financial Services Modernization Act of 1999, Pub. L. 106-102, 113 Stat. 1338, § 501(b); 

see. e.g., Cal. Civ. Code§ 1798.29; Fla. Stat.§ 817.5681: 815 ILCS § 530/IO(a); NY CLS Gen. Bus.§ 899-aa; 

N.C. Gen. Stat.§ 75-65; Rev. Code Wash.§ 19.255.010. 14 The greater efticiency of automated calling is suggested by a report issued by Quantria Strategies, LLC, which 

states that automated dialing permits an average of21,387 calls per employee per month, as opposed to an average 

of 5,604 calls per employee per month when manual dialing is used. The gain in efticiency when automated 

methods are used is 28 I .6%. See J. Xanthopoulos, ModifYing the TCPA to Improve Services to Student Loan 

Borrowers and Enhance Performance of Federal Loan Portfolios 9 (July 2013), available at 

http://apps.Commission.gov/ecfs/documentlview'?id~7521337606. 

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any new credit plan or extension of credit without verification of the consumer's identity. 

Further, the FCRA expressly directs financial institutions to call consumers to conduct this 

verification. 15 

Although the Commission granted an exemption from the TCPA's consent requirements 

for these data breach and suspicious activity alert calls, the Commission inexplicably required 

that exempted calls be made only to a number that was provided by the customer. As a result of 

this requirement, many consumers will not be contacted with time-sensitive messages intended 

to prevent fraud and identity theft simply because there is no documentation that the consumer, 

not a spouse or other joint account holder, provided the number to the financial institution. What 

we have learned from the marketplace is that the "provided number" condition is unnecessarily 

limiting the ability of financial institutions to send exempted messages: 

• One bank is unable to send approximately 3,000 exempted messages each day due to the 

provided number condition. 

• A second large bank is not able to send exempted messages to approximately 6 million 

customers because ofthe condition. 

• A third bank is not able to send an exempted message to 62% of its customers because of 

the condition. 

Small financial institutions, including credit unions and community banks, have also 

expressed concerns, or found that they do not have the resources to comply with a number of 

conditions that must be met to qualify for this exemption. The experience of these financial 

institutions shows that the provided number condition, rather than serving the interests of 

consumers, has effectively prevented consumers from enjoying the benefits the exemption was 

intended to provide. 

(2) Consumer Protection and Fee Avoidance Calls 

Financial institutions use autodialed telephone communications to protect consumers' 

credit and help them avoid fees. Institutions seek to alert consumers about low account balances, 

overdrafts, over-limit transactions, or past due accounts in time for those consumers to take 

action and avoid late fees, accrual of additional interest. or negative reports to credit bureaus. 

15 Fair Credit Reporting Act§ 60S A (codified at 15 U.S.C. § 1681c-l). 

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Indeed, the FDIC listed "low-balance alerts" as one of the ''most promising strategies" for 

financial institutions to help consumers avoid overdraft or insufficient funds (NSF) fees. 16 

Autodialed calls that deliver prerecorded messages are the quickest and most effective way for 

these courtesy calls to be made. Failure to communicate promptly with consumers who have 

missed payments or are in financial hardship can have severe, long-term adverse consequences. 

These consumers are more likely to faee repossession, foreclosure, adverse credit reports, and 

referrals of their accounts to collection agencies. Prompt communication is a vital step to avoid 

these harmful consumer outcomes. 

(3) Loan Modification Calls 

Financial institutions also rely upon automated calling methods to contact consumers 

who are encountering difficulty paying their mortgages or student loans. Autodialers and 

prerecorded messages are used to initiate contact with delinquent borrowers, to remind them to 

return the paperwork needed to qualify for a modification, and to notify borrowers that a 

modification is being delivered so that the package will be accepted. According to the 

Department of Education, "If servicers are able to contact a borrower, they have a much better 

chance at helping that borrower resolve a delinquency or default ... With phone numbers 

changing or being reassigned on a regular basis, it is virtually impossible for servicers to use 

auto-dialing technology." 17 Additionally, the Commission's consent requirements are in conflict 

with the Bureau of Consumer Financial Protection's mortgage servicing rules, which require 

servicers to make a good faith effort to establish live contact with a borrower. Ifthe servicer has 

not obtained the consent of the borrower, it cannot-consistent with the TCPA-use efficient 

dialing technology to make the calls required by the Bureau's rules to the approximately 50% of 

consumers with wireless numbers only. These inconsistent standards leave financial institutions 

with an unworkable choice--violate the mortgage rules or potentially be subjected to TCPA 

litigation. 

(4) Customer Service Calls 

16 FED. DEPOSIT INS. CORP., FIL-32-2016, REQUEST FOR COMMENTS ON MOBILE FINANCIAL SERVICES STRATEGIES 

AND PARTICIPATION IN ECONOMIC INCLUSIO>i DEMONSTRATIONS 3 (2016), available at 

https://www. faic.gov/news/news/tinancia1/20 I6/fil16032.pdC 

17 DEPT. OF EDUCATION "STRENGTIIENING THE STUDENT LOAN SYSTEM TO BEr!TiR PROTECT ALL BORROWERS": 

ALLOW SERVICERS TO CONTACT f'EDERAL STUDENT LOAN BORROWERS VIA THEIR CELL PHONES (OCT. 1, 2015) AT 

16, available at HTTP://WWW2.ED.GOV/DOCUMENTS/PRESS-RELEASESISTRENUTHENING-STUDENT-LOAN-SYSTEM.PDF 

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Financial institutions rely upon the efficiency of autodialed calling to provide follow-up 

calls to resolve consumers' service inquiries, For example, if a consumer inquiry requires 

account research, a customer service representative often completes the necessary research and 

places an autodialed follow-up call to the consumer, Autodialed calls are initiated also to remind 

consumers that a credit card they have requested was mailed and must be activated. Our 

members go to great lengths to maintain good customer relations, but the risk ofTCPA litigation 

prevents them for fully serving their customers. 

(S) Insurance Policyholder Alerts 

Insurance providers use autodialers to advise consumers of the need to make payment on 

automobile and life insurance policies to prevent potential lapse. Automobile insurers are 

required to give written notice 10-30 days in advance before terminating policies for failure to 

pay. Using an autodialer helps ensure the consumer is aware of the need to make payment in 

time to avoid a lapse in policy, late fees, or driving without legally-required liability insurance. 

Similarly, life insurance policies require advance written notice of cancellation. If a 

policy lapses for non-payment, some individuals may no longer be eligible for life insurance or 

may have to pay substantially more for that insurance. Use of the autodialed messages helps 

avoid nonpayment cancellation of the life insurance. 

(6) Disaster Notifications 

Many property insurance companies rely on the speed of autodialers to notify their 

customers when a catastrophe is imminent of how and where to file a claim. Furthermore, 

immediately after a disaster, wire line phone use may be unavailable, claim locations may have 

changed, and normal communications may not be operating, necessitating calls to mobile 

phones. Similarly, autodialers may also be used by insurers to give information regarding the 

National Flood Insurance Program. 

II. The TCP A Prevents Financial Institutions from Efficiently Serving Consumers 

who Wish to Communicate by Mobile Phone 

As interpreted by the Commission, the TCPA imposes significant impediments on the 

ability of financial institutions and other businesses to communicate with those consumers who 

elect to communicate by cell phone. Put simply, the TCP A effectively prevents financial 

institutions from using the most efficient means available to advise these mobile phone-electing 

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consumers of important and time-sensitive information aflecting the consumers' accounts. This 

is not what Congress intended. In enacting the TCPA, Congress sought to provide consumers 

with choice of contact, not isolation from contact. Making that choice for cell phone users more 

burdensome and less efficient-as the Commission has done in its recent orders-is not what 

Congress sought to accomplish. The report from this Committee accompanying the enactment 

of the TCPA clearly states that, under the TCPA, "a retailer, insurer, banker or other creditor 

would not be prohibited from using an automatic dialer recorded message player to advise a 

customer ... that an ordered product had arrived, a service was scheduled or performed, or a 

bill had not been paid." 18 In light oflitigation risk, fulfilling this Congressional intent in 

providing important information to their consumer using automated dialing technology is not an 

option. 

There are two primary ways in which the TCP A, as interpreted by the Commission, 

imposes significant impediments on the ability of financial institutions to contact consumers, as 

described below. 

A. The TCPA Has Been Interpreted to Sweep all Non-manual Dialing 

Technologies within the TCPA's Limited Autodialer Category. 

The Commission has construed the definition of an autodialer so broadly that it sweeps 

in technologies used by financial institutions to send important messages to consumers that 

were never contemplated to fall within the definition of this term. This expansive interpretation 

effectively prohibits financial institutions from using many efficient dialing technologies unless 

the consumer's prior express consent has been obtained. Congressional action is needed to 

return the definition of autodialer to its original, limited application. 

As defined in the TCPA, an autodialer has the "capacity- (A) to store or produce 

telephone numbers to be called, using a random or sequential number generator; and (B) to dial 

such numbers." 19 Significantly, financial institutions, unlike the abusive telemarketers from 

which Congress intended to protect consumers, are interested only in calling the telephone 

numbers of actual consumers and members and have no desire or incentive to dial numbers 

generated randomly or in sequence. 

18 H.R. Rep. 102-317 (1991). 19 47U.S.C. § 227(a)(l) (emphasis added). 

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However, the Commission greatly expanded the scope of the devices classified as an 

autodialer beyond devices that use a random or sequential number generator. In addition, the 

Commission concluded a device is an autodialer if it has the "potential ability" to perform the 

autodialer's functions-even if it does not have the present ability to do so. 20 This 

interpretation, divorced from the statutory text, sweeps in dialing systems used by financial 

institutions, preventing them from sending important messages to consumers efficiently. In fact, 

one financial institution has resorted to purchasing last generation "flip" cell phones solely to 

ensure compliance with the Commission's rulings concerning the TCPA. Financial institutions 

should not be forced to use all-but obsolete technology in order to remain compliant with 

federal law. 

B. The TCPA's Imposition of Liability for Calling Reassigned Numbers is 

Harmful to Consumers 

As interpreted by the Commission, the TCPA creates a risk ofliability for calling a 

number for which the caller has received consent, but which has been subsequently reassigned 

to another consumer unbeknownst to the caller. The potential liability for calls made in good 

faith to reassigned numbers threatens to curtail important and valued communications between 

the institution and consumers. 21 If the fear of calling a reassigned number prevents a financial 

institution from sending an alert to a consumer about potential identity theft, suspicious activity 

on the account, or a low balance, the consumer suffers. 

The TCPA's imposition ofliability for calls made to reassigned numbers is wholly 

unnecessary to protect the privacy of consumers. There is simply no need or incentive for a 

financial institution to place a non-telemarketing, informational call to anyone other than the 

intended recipient. Moreover, institutions make significant efforts to promote accuracy in the 

numbers they call, such as providing consumers multiple means to edit contact information, 

confirming a consumer's contact information during any call with the consumer, regularly 

20 In the Matter of Rules & Regulations Implementing the TeL Consumer Prot. Act of 1991 et al., 30 F.C.C. Red. 

7961,7976 (2015). 21 Although the Commission established a "one call'' safe harbor, this provides little comfort to financial institutions, 

as callers often do not learn whether a call has connected with the intended recipient---as opposed to a party to 

which the number may have been reassigned-and thus do not receive notice when the number has been reassigned 

to another consumer. 

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checking to confirm that a rcsidentiallandline number has not been transferred to a wireless 

number, or providing instructions for reporting a wrong number call. 

Financial institutions-which can place billions of informational calls annually-cannot 

completely avoid calling reassigned wireless telephone numbers. Telephone companies recycle 

as many as 37 million telephone numbers each year, 22 and yet there is no public wireless 

telephone directory or tool available to identify numbers that have been reassigned. We 

recommend that Congress mandate the establishment of a database of reassigned numbers to 

assist callers with contacting consenting consumers at those consumers' current number. We 

applaud Chairman Thune and Senator Markey for highlighting the need for a reassigned database 

in their July 14, 2016 letter to CTIA- the Wireless Association. We look forward to 

developments on the proposed database and welcome the opportunity for dialogue about how 

wireless companies can work with the FCC to make such a database available at no, or limited 

cost, to consumers and those seeking to communicate with them. 

III. Congress Should Reform the TCPA by Imposing a Damages Cap. 

We urge Congress to reform the TCPA to ensure that financial institutions and other 

callers can make important, and often time-sensitive, calls to consumers. A statute designed to 

provide consumers with a right to pursue an individual claim against an unlawful telemarketer in 

small claims court and without the need tor an attorney23 now threatens any company or 

financial service provider that seeks to use automated dialing technologies to communicate with 

its customers or members with abusive class action litigation. The balance that Congress struck 

between protecting consumers and safeguarding beneficial calling practices has been eviscerated, 

and recent interpretations of the TCPA clearly demonstrate the Commission's refusal to restore 

this balance. 

22 Alyssa Abkowitz, Wrong Number> Blame Companies' Recycling, Wall Street J. (Dec. 1, 2011), available at 

http://www. wsj .com/articles/SB 1 0001424052970204012004577070122687 462582#ixzz1 fFP 14V 4h. 23 See 137 Con g. Rec. 30821-30822 (1991) (statement of Sen. Hollings) ("The substitute bill contains a private 

right-of-action provision that will make it easier for consumers to recover damages ffom receiving these 

computerized calls. The provision would allow consumers to bring an action in State court against any entity that 

violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each 

State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, 

it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in 

small claims court .... Small claims court or a similar court would allow the consumer to appear before the court 

without an attorney, The amount of damages in this legislation is set to be fair to both the consumer and the 

telemarketer.") (emphasis added). 

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Congress should amend the TCPA by imposing a damages cap similar to the damage 

caps assigned to other consumer financial protection statutes. The Truth in Lending Act (TILA), 

the Electronic Funds Availability Act, and the Fair Debt Collection Practices Act each limit the 

amount awarded in individual and class action litigation. TILA, for example, includes not only 

individual statutory damages caps, but also imposes an aggregate cap in the event of a class 

action or series lawsuits tied to the same lack of compliance. We believe that a similar cap 

would be an appropriate addition to the TCPA. We welcome the opportunity to work with 

Congress to determine what the proper damages cap amount would be for TCPA litigation. 

Conclusion 

In enacting the TCP A, Congress struck a balance between protecting consumer privacy 

and safeguarding calling practices that help consumers avoid identity theft, late fees, and other 

harms. The Commission's interpretations of the TCPA effectively eliminated that balance, 

preventing financial institutions and others who wish to communicate. We agree with Chairman 

Walden that "[a]s technology evolves, so too should our laws. The TCPA should be ensuring 

Americans receive the calls they want without being harassed by calls they don't. Instead, it's a 

prime example of an outdated law that lags behind modern communications technology and 

consumer preferences." We look forward to working with the Congress on modernizing the 

TCPA to protect consumers' ability to receive important, and often time-sensitive, 

communications. 

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September 21,2016 

The Honorable Greg Walden, Chairman 

The Honorable Anna Eshoo, Ranking Member 

U.S. House of Representatives Committee on Energy and Commerce 

Subcommittee on Communications and Technology 

2125 Rayburn House Office Building 

Washington, DC 20515 

RE: Hearing on "Modernizing the Telephone Consumer Protection Act" 

Dear Chairman Walden and Ranking Member Eshoo: 

We write to you regarding the upcoming hearing on "Modernizing the Telephone 

Consumer Protection Act." 

The Electronic Privacy Information Center ("EPIC") is a public interest research center 

established more than 20 years ago to focus public attention on emerging privacy and civil 

liberties issues. EPIC played a leading role in the creation of the TCPA and continues to defend 

the Act, 1 one of the most important privacy laws in the United States.2 We have provided 

numerous comments to both the Federal Communications Commission ("FCC") and the Federal 

Trade Commission ("FTC"), and maintain online resources for consumers who seek to protect 

their rights under the TCP A. 3 Nonetheless, we recognize the significant changes in technology 

and business practices over the past 25 years and agree with the Chairman and others that the 

TCPA needs to be updated for the 21" century. We offer these initial thoughts on how that can 

best be accomplished in a way that fulfills the purpose of the Act and continues to protect 

consumer privacy. We would be pleased to provide the Subcommittee with more detailed 

suggestions. 

1 See, e.g., Telephone Advertising and Consumer Rights Act, H.R. 1304, Before the Subcomm. on Telecomms. And 

Fin. of the H. Corum. on Energy and Commerce, 102d Cong., 1st Scss. 43 (April24, 1991) (testimony ofCPSR 

Washington Office director Marc Rotenberg), https://www .c-span.org/videol? 18726-1/tclcphonc-solicitation; Brief 

of Amici Curiae Electronic Privacy Information Center (EPIC) and Six Consumer Privacy Organizations in Support 

of Respondents, ACA Int'l v. FCC, No. 15-1211 (D.C. Cir. Jan. 22, 2016), https://epic.org/amicus/acainti/EPICAmicus.pdf; National Consumer Law Center eta!., Petition for Reconsideration of Declaratory Ruling and Request 

for Stay Pending Reconsideration In the Matter ofBroadnet Teleservices LLC Petition for Declaratory Ruling, CG 

Docket ~o. 02-278 (20 16). 2 Justice Brandeis described privacy as "the right to be let alone-the most comprehensive of rights and the right 

most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). 3 See, e.g, EPIC, EPIC Administrative Procedure Act (APA) Comments, https://epic.org/apa/comments/; EPIC, 

Telemarketing and the Telephone Consumer Protection Act (TCPA), https://epic.org/privacy/telemarketing/. 

EPIC Letter to U.S. House of Reps. 

Subcomm. on Communications and Technology 

Hearing on Modernizing the TCP A 

September 21,2016 
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TheTCPA 

In the late 1980s, the United States faced a growing problem: American consumers were 

inundated with unwanted telephone calls and junk faxes, imposing costs and causing a 

substantial nuisance and invasion of privacy. Calls from tclemarketers arrived at the home as 

families were sitting down for dinner. Rolls of fax paper were printing out ads for pizza delivery 

and home loans that the fax owner had no interest in receiving. With autodialers and robotic 

messages, telemarketers were interrupting millions of Americans each day with unsolicited 

messages. After several hearings, Congress concluded that the "only effective means of 

protecting telephone consumers from this nuisance and privacy invasion" was to bar most 

automated or prerecorded telephone communications unless "the receiving party consents to 

receiving the call" or there is some emergency circumstance.4 The Act also provided for the 

creation of what would become the National Do Not Call Registry. 5 

Although it took many years to fully implement the Do Not Call Registry mandated by 

the TCPA, the law has been an enormous success. By at least one measure, the TCPA is one of 

the most popular laws ever enacted by Congress. As of September 30, 2015, the Do Not Call 

Registry contained 222 million active numbers-more than the number of people who voted in 

the 2008 Presidential election for all the candidates combined6 The popularity is due in large 

part to the Registry's opt-out mechanism, which permits consumers to exercise their rights in a 

clear, stable and legally enforceable manner. Other attempts at opt-out, such as the Do Not Track 

experiment or self-regulation, have failed where the Do Not Call Registry succeeded7 

Despite the success of the TCP A, consumers continue to be plagued by unwanted 

robocalls and text messages. The transition from land lines to mobile phoncs8 has only made the 

problem worse. Unsolicited calls and texts facilitate fraud, drain battery life, eat into data plans 

and phone memory space, and demand attention when the user would rather not be interrupted. 

For low-income consumers who often rely on pay-as-you-go, limited-minute prepaid wireless 

4 Telephone Consumer Protection Act of 1991. Pub. L. No. I 02-243, § 2(12), I 05 Stat. 2394, 2394 (codified at 47 

u.s.c. § 227). 5 See id. § 3(a) (codified at 47 U.S.C. § 227(c)(3)); Do-Not-Call Implementation Act, Pub. L. 108-10, 117 Stat. 57 

(codified at 15 U.S.C. §§ 6151-6155). 6 See U.S. CENSUS BUREAC, STATISTICAL ABSTRACTOFTHE UNITED STATES t.406 (2012), 

http://www.census.gov/library/publicationsi20 ll/compendia/statabil31ed/elections.html (reporting that 131 million 

total votes in the 2008 election). 7 Sec "Do Not Track Legislation: Is Now the Right Time?'', Before the Subcomm. on Telecomms. And Fin. of the H. 

Comm. on Energy and Commerce, 111th Cong., 2nd Sess. 1--3 (Dec. 2, 2010) (testimony of EPIC Executive 

Director Marc Rotenberg), https://epic.orgiprivaey/consumer/EPIC _Do _Not_ Track_ Statement_l2091 O.pdf 

(Discussing the history of the TCPA and the eventual success of the Do Not Call Registry). 8 More than 92% of American adults own at least one cell phone and 79% own smartphones. Monica Anderson, 

Technology Device Ownership: 2015, Pew Research Ctr. (Oct. 29, 2015) 

http://www.pewinternet.org/20 1511 0/29/technology-device-ownership-20 15/; com Score Reports November 2015 

US Smartphone Subscriber Market Share, comScore (Jan. 7, 2016) (reporting 92% cell phone ownership), 

https ://www .comscore.com/Insigh ts/Market-Rankings/ comScore-Reports-N ovember-20 15 -US-SmartphoneSubscriber-Market-Share (reporting 79% smartphone share). Nearly half of American households do not have a 

land line. Stephen J. Blumberg & Julian V. Luke, Ctrs. for Disease Control & Prevention, Wireless Substitution: 

Early Release of Estimates from the Nationalllealth Imerview Survey, January~June 2015, at 5 (Dec. I, 2015), 

htlp://www.cdc.gov/nchsldata/nhis/earlyrelease/wireless20 1512.pdf. 

EPIC Letter to U.S. House of Reps. 2 

Subcomm. on Communications and Technology 

Hearing on Modernizing the TCP A 

September 21, 2016 
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plans, 9 these unwanted calls and texts are particularly harmful. Because we carry our phones 

with us everywhere, 10 unwanted calls and texts interrupt sleep, disturb meetings and meals, and 

disrupt concentration wherever we go. We no longer have to eat at home to be interrupted by an 

unwanted telemarketing call at dinner. 

Preserving the Protections of the TCP A 

EPIC agrees with the Subcommittee on the need to update the TCPA for the 21st century. 

But the updates must ensure that the original goals of the legislation continue to be served. 

Central to the TCP A are the following: (I) consumers should be free of unwanted commercial 

intrusions into their private lives; (2) commercial firms must bear the burden for the 

communications they initiate, not impose costs on consumers to protect their privacy; and (3) 

legal rights should be robust, enforceable and minimally burdensome for consumers. 

EPIC supports preserving a private right of action in the TCPA. Although we 

acknowledge that class actions settlements often fail to provide benefits to the consumers on 

whose behalf these cases are brought, 11 TCP A cases arc among the most effective privacy class 

actions because they typically require companies to change their business practices to comply 

with the law. 

The Subcommittee notes the fact that FCC enforcement actions have sharply decreased in 

recent years. This trend further highlights the importance and efficiency of the TCPA's private 

enforcement action. Because consumers are able to use private actions to enforce their own 

rights under the Act, fewer government resources are needed for administrative enforcement. 

Improving the TCPA 

EPIC agrees that some of the text of the TCPA should be reconsidered. Provisions 

regarding fax machines, for example, target a specific technology that is much less commonly 

used today than it was in 1991. The TCPA's focus on specific technologies also leaves holes in 

its coverage that will only widen over time. The solution is to ensure that the TCPA is a 

technology-neutrallaw that protects consumers from unwanted incoming commercial 

communications, the central purpose of the Act. 

A technology-neutral regulatory framework would permit, for example, extending TCP A 

coverage to include commercial communications through messaging apps. Many smartphone 

users today are as dependent on Skype, WhatsApp, Snapchat, Allo, and other messaging apps as 

consumers 25 years ago were dependent on phone networks. Absent technology-neutral 

regulation, unwanted commercial solicitations will follow consumers to these apps. Marketing 

9 Federal Communications Commission, Annual Report and Analysis of Competitive Market Conditions With 

Respect to Mobile Wireless, Eighteenth Report, WT Docket No. 15-125,1:1144,73,95-96 (Dec. 23, 2015). 10 More than 70% of smartphonc users keep their phones within five feet a majority of the time. Harris Interactive, 

2013 Mobile Consumer Habits Study (June 2013), http://pages.jumio.com/rs/jumiolimages/Jumio%20-

%20Mobile%20Consumer %20Habits%20Study-2.pctr. 11 See Marc Rotenberg & David Jacobs, Enjilrcing Privacy Rights: Class Action Litigation and the Challenge of cy 

pres , in ENFORCING PRIVACY: REGULATORY, LEGAL AND TECHNOLOGICAL APPROACHES 307, 317-23 (David 

Wright & Paul De Hert, cds., 2016). 

EPIC Letter to U.S. House of Reps. 3 

Subcomm. on Communications and Technology 

Hearing on Modernizing the TCP A 

September 21, 2016 
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companies are already looking at the popular WhatsApp service for commercial solicitations. 12 

WhatsApp, which had promised its users that it would avoid commercial texting, recently 

announced plans to allow businesses to send marketing messages to users via the app. 1 3 

Extending TCP A coverage to include these apps would extend the protections of the TCPA to 

new communications services. 

An updated TCP A should also require that any automated calls reveal (I) the actual 

identity of the caller and (2) the purpose of the call. Digital networks now make it easier for 

commercial firms to make known the source and purpose of the call, and this information can 

then help consumers determine how best to prioritize incoming messages. It is also possible that 

Congress could resolve the emerging use of emergency texts through appropriate updates to the 

TCPA. 

Some smartphones allow consumers to block certain phone numbers, but carriers and app 

developers are in the best position to block unwanted commercial messages at the source. 

Consumers should be able to block incoming numbers without paying an additional fee to 

carriers or apps. 

The TCP A is in need of updating. Those updates should strengthen its protections for 

consumer privacy. We look forward to working with you to develop rules to provide meaningful 

and much-needed protections for consumer privacy. 

Sincerely, 

Marc Rotenberg 

EPIC President 

Claire Gartland 

Director, EPIC Consumer Privacy Project 

James Graves 

EPIC Law and Technology Fellow 

cc: The Honorable Fred Upton, Chairman, House Energy and Commerce Committee 

The Honorable Frank Pallone, Jr., Ranking Member, House Energy and Commerce 

Committee 

12 Gulveen Aulakh, Telemarketers Take WhatsApp Route for Bulk SMSes, ECONOMIC TIMES, May 24, 2014, 

http :1/articles.economictimes. indiatimes.com/20 I 4-05 -24/news/50070 188 ._1_ ch ief-executive-j an-koum-whatsappusers·messages. 

13 WhatsApp B1og, Looking Ahead/or WhatsApp (Aug. 25, 2016), h!tps://blog.whatsapp.com/10000627/Lookingahead-for-WhatsApp. 

EPIC Letter to U.S. House of Reps. 4 

Subcomm. on Communications and Technology 

Hearing on Modernizing the TCP A 

September 21, 2016 
93 


22980.059

America•s Health 

Insurance Plans 

601 Pennsylvania Avenue, NW 

South Building 

Suite Five Hundred 

Washington, DC 20004 

202.778.3200 

www.ahip.org 

September 21,2016 

The Honorable Fred Upton 

Chairman 

House Energy and Commerce Committee 

2125 Rayburn Building 

Washington, D.C. 20515 

The Honorable Greg Walden 

Chairman 

House Energy and Commerce Subcommittee 

on Communications and Technology 

2185 Rayburn Building 

Washington, D.C. 20515 

--A, 

AHIP 

The Honorable Frank Pallone 

Ranking Member 

House Energy and Commerce Committee 

2322A Rayburn Building 

Washington, D.C. 20515 

The Honorable Anna Eshoo 

Ranking Member 

House Energy and Commerce Subcommittee 

on Communications and Technology 

241 Cannon Building 

Washington, D.C. 20515 

Dear Chairmen Upton and Walden and Ranking Members Pallone and Eshoo: 

On behalf of America's Health Insurance Plans (AHTP), I am submitting the attached letter for the 

official record of your September 22 hearing on "Modernizing the Telephone Consumer Protection 

Act." 

Our letter urges the Federal Communications Commission (FCC) to align the Telephone Consumer 

Protection Act (TCPA) with HlPAA regulations applicable to all covered entities (providers, health 

plans, and clearinghouses) and their business associates. This would recognize that all HIPAA 

covered entities and their business associates could make non-marketing, health care-related 

telephone calls without prior consent. 

Our letter also discusses the use and importance of non-marketing telephonic communications by 

health plans in fostering quality of care and improving health outcomes for enrollees. Our comments 

support a joint petition filed by various parties, including Anthem and WellCare, requesting that the 

FCC clarify and modify its prior 2015 TCPA Omnibus Declaratory Ruling and Order to: (I) clarify 

that the provision of a phone number to a "covered entity" or "business associate" (as those terms are 

defined under HIPAA) constitutes prior express consent tor non-telemarketing calls allowed under 

HIPAA for the purposes of treatment, payment, or health care operations; and (2) modify the prior 

express consent clarification and the non-telemarketing health care message exemption in its 2015 

Order to include HIPAA "covered entities" and "business associates." 

Thank you for considering our views on these important issues. 
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22980.060

September 21, 20 16 

Page 2 

Sincerely, 

rl--~ Julie Miller 

General Counsel 

Enclosure 
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22980.061

Before the 

FEDERAL COMMUNICATIONS COMMISSION 

Washington, DC 20554 

In the Matter of 

The Joint Petition of Anthem, Inc., Blue Cross 

Blue Shield Association, WellCare HealthPlans, 

Inc. and the American Association of Healthcare 

Administrative Management for Expedited 

Declaratory Ruling and/or Clarification of the 

2015 TCPA Omnibus Declaratory Ruling 

and Order 

Rules and Regulations Implementing the 

Telephone Consumer Protection Act of 1991 

CO Docket No. 02-278 

COMMENTS BY AMERICA'S HEALTH INSURANCE PLANS IN SUPPORT OF 

ANTHEM, INC., BLUE CROSS BLUE SHIELD ASSOCIATION, WELLCARE 

HEALTHPLANS, INC. AND THE AMERICAN ASSOCIATION OF HEALTH CARE 

ADMINISTRATIVE MANAGEMENT JOINT PETITION FOR EXPEDITED 

DECLARATORY RULING AND/OR CLARIFICATION OF THE 2015 TCPA 

OMNIBUS DECLARATORY RULING AND ORDER 

Julie Simon Miller 

Thomas M. Palumbo 

AMERICA'S HEALTH INSURANCE PLANS 

60! Pennsylvania Avenue, N.W. 

South Building, Suite 500 

Washington, D.C. 20005 

(202) 778-3200 

jumiller@ahip.org 

tpalumbo@ahip.org 

Counsel for America's Health Insurance Plans 

September 19,2016. 
96 


22980.062

I. Introduction and Summary 

America's Health Insurance Plans ("AHJP") submits the following comments in support 

of the Joint Petition for Expedited Declaratory Ruling and/or Clarification of the 2015 TCPA 

Omnibus Declaratory Ruling and Order filed by Anthem, Inc., Blue Cross Blue Shield 

Association, Wellcare Health Plans., Inc., and the American Association of Health Management 

("Joint Petition"). 

AHIP is the national trade association representing the health insurance community. 

AHIP's members provide health and supplemental benefits through employer-sponsored 

coverage, the individual insurance market and public programs such as Medicare and Medicaid. 

Our members have broad experience working with hospitals, physicians, patients, employers, 

state governments, the federal government, pharmaceutical and device companies, and other 

healthcare stakeholders to ensure that patients have access to and are fully utilizing needed 

treatments and medical services. AHIP strongly supports initiatives to improve the health and 

wellbeing of individuals, including important health care communications made to patients and 

enrollees in health plans offered by our members. 

The provision of health insurance includes more than issuing and administering a policy; 

it entails proactively engaging with enrollees on a wide variety of related coverage issues and 

coordinating the effective utilization of benefits. This includes care management and 

coordination services as well as engaging in outreach and education activities intended to 

maximize enrollee health outcomes. These efforts often include conducting health care-related 

telephone contacts to ensure that enrollees are, among other things: adhering to treatment plans; 

picking up necessary prescriptions; scheduling necessary appointments; provided with timely 

and accurate information regarding scheduled treatments; have access to pre-operative, post-
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22980.063

treatment and homecare instructions; and are fully utilizing covered benefits and services. 

These, as well as other kinds of telephone contacts detailed in our comments, play an essential 

role in improving health outcomes and promoting wellness among enrollees. 

Accordingly, AHIP strongly supports petitioners' request that the Federal 

Communications Commission ("FCC") interpret its Telephone Consumer Protection Act 

("TCPA")) 2015 Omnibus Declaratory Ruling and Order (the "2015 Declaratory Order" or 

"Order") in a manner that is consistent with previous TCPA rules and related FCC decisions by 

continuing to allow consumers to receive non-telemarketing calls allowed by the Health 

Insurance Portability and Accountability Act of 1996 ("HIPAA"). AHIP submits that the FCC 

should, consistent with petitioners' request, issue a ruling and/or clarification of the 2015 

Declaratory Order clarifying that: I) the provision of a phone number to a "covered entity" or 

"business associate" constitutes prior express consent for non-telemarketing calls allowed under 

HIPAA for the purposes of treatment, payment, and health care operations; and 2) the prior 

express consent clarification in paragraph 141 and the non-telemarketing health care message 

exemption granted in paragraph 147, both in the 2015 Declaratory Order, be clarified to include 

HIPAA "Covered entities" and "business associates." Specifically, each use of the term "health 

care provider" in these paragraphs should be clarified to encompass "HIPAA covered entities 

and business associates". 

II. Background 

Telephonic communications play an essential role in supporting the innovative strategies 

through which health insurance plans are working to improve health outcomes for their enrollees. 

2 
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22980.064

Health plans, as IIIPAA covered entities, 1 engage in a wide variety of critical health care 

communications to individuals, including prescription refill and physician office visit reminders, 

care coordination messages, the provision of home health care information, and pre- and postoperative instructions all of which are intended to help improve health outcomes. These are 

precisely the kinds of non-marketing hcalthcare communications designed to improve quality of 

care and health care outcomes that health plans have focused on developing innovative strategies 

around in an effort to improve enrollee health and wellness. 

As requested in the petition, we urge the FCC to align its 2015 Declaratory Order with 

the HIPAA Privacy Rule's long-standing understanding ofwhat is permitted as treatment, 

payment, and operations. The HIPAA Privacy Rule does not require covered entities to obtain 

an individual's written authorization or consent prior to using or disclosing protected health 

information for treatment, payment, or health care operations. 2 The United States Department of 

Health and Human Services ("HI-IS'") has also made clear that wellness programs, disease 

management programs, and the like are not marketing activities requiring separate authorization 

to use protected health information. 3 We urge the FCC to recognize the HI-IS policy goals that 

support such programs through the long-standing HIP AA rule and align across all modes of 

communication whether e-mail, text, cell call, land-line, or mail- to permit HIPAA covered 

entities to engage in these important health outreach activities. 

Further, AHIP recognizes and appreciates the considerable efforts the FCC undertook in 

developing the standards for communications in situations where consumers have previously 

given consent to be contacted by providing their telephone number to a covered entity, 

1 See 45 C.F.R. § 160.103. 2 See 45 C.F.R. § 164.506(b). 3 See. e.g. Hf!S ff!PAA FAQsjor Professionals, December 2002, available at: http://www.hhs.gov/hipaalforprofessionals/fag/280/what-programs-fall-under-hippa-detinition-ot~marketing/index.html. 

3 
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22980.065

particularly those standards enumerated in the 2015 Declaratory Order. However, AHIP shares 

Petitioners' concern that the 2015 Declaratory Order may inadvertently limit the benefit of nonmarketing health care communications by referencing only health care providers, and not other 

HIPAA covered entities and business associates. Interpreting the Order in such a manner risks 

discouraging and burdening important health care communications that are otherwise allowed by 

the more specific HIPAA regulation, and encouraged by federal and state public health policies. 

At the outset, it is important to note that in the case of health insurance plans, an 

individual's telephone contact information is typically received as part of the enrollment process, 

which is then utilized to engage in various non-marketing, care management communications 

that previously may have been performed by health care professionals. These are the same type 

of messages identified in the 2015 Declaratory Order, specifically: 

" ... calls for which there is exigency and that have a healthcare 

treatment purpose, specifically: appointment and exam confirmation 

and reminders, wellness checkups, hospital pre-registration 

instructions, pre-operative instructions, lab results, post-discharge 

follow-up intended to prevent readmission, prescription 

notifications, and home healthcare instructions." 

Order at ~146. Non-marketing telephone contacts, such as those at issue here, play an important 

role in efforts by health insurance plans to improve health outcomes for enrollees. This is 

consistent with the FCC's prior decisions acknowledging the same. In 2012, the FCC accepted 

the principle that autodialed prerecorded health-care related calls have an important role to play 

in our health care system. In exempting from several requirements applicable to prerecorded 

calls all health-care related calls to residential landlines subject to HIP AA, the FCC concluded 

that such calls "serve a public interest purpose: to ensure continued consumer access to health 

4 
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22980.066

care-related information" and do not "tread heavily upon the consumer privacy interests" that the 

TCPA was intended to protect. 4 

However, the 2015 Declaratory Order could be misconstrued so as to limit the scope of 

exempted calls to voice call or text messages "made by or on behalf of a healthcare provider" 

and thus risks a too narrow interpretation that would exclude all other relevant HIP AA covered 

entities other than "healthcare providers" (itself a term the Order leaves undefined), including 

health insurance plans and their contracted business associates which themselves increasingly 

serve a similar role in facilitating and managing the care of Americans. Order at ~147 (emphasis 

added). We believe this is an unintended result which could expose health plans to potential 

regulatory enforcement action by the FCC, civil litigation and could lead to the curtailment of 

innovative non-marketing hcalthcare communications health plans engage in as a means of 

improving health outcomes for their enrollees. 

III. Health Plans' Use of Telephone Contacts for Improving Health Outcomes 

Telephone contacts, such as those at issue here, play an important role in efforts by health 

insurance plans to improve health outcomes for enrollees. Health plans have a long history of 

developing innovative tools and strategies to ensure that enrollees receive health care services on 

a timely basis, while also emphasizing prevention and providing access to disease management 

services for their chronic conditions. Using systems of coordinated care, health plans work to 

ensure that physician services, hospital care, prescription drugs, and other health care services 

4 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 27 

FCC Red 1830 li~ 60, 63 (20 12); see id. ~ 60 n. 176 (noting that AH1P supported creation of such an exemption 

"because the exemption would allow the continuation of important communications by health care providers and 

health insurance plans such as prescription refills, immunization reminders, and post hospital discharge follow-up."). 

5 
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22980.067

are integrated and delivered with a strong focus on preventing illness, improving health status, 

and employing best practices to swiftly treat medical conditions as they occur- rather than 

waiting until they have advanced to a more serious level. These initiatives frequently coordinate 

services and data (including contact information such as phone numbers) in both directions 

between different types of HIPAA covered entities. 

Timely and cost-effective communication with health plan enrollees is essential to the 

success of the innovative strategies health plans have developed to improve health care quality 

and outcomes. This includes, for example, telephonic communications that remind enrollees to 

schedule appointments with their doctor and refill prescription drugs. In other cases, these 

messages provide information that can promote adherence with treatment regimens, encourage 

healthy activities, and improve the management of chronic conditions. Non-marketing 

telephonic communications are also an essential component of health plan efforts to improve and 

report on health care quality, and involve a wide range of activities including case management, 

identification of target populations with specific health care needs, and counseling. Telephone 

contacts are one of the tools utilized by health plans to promote engagement by individuals with 

their health and to meet quality requirements. These tools play a critical and recognized role in 

promoting health. 

Indeed, not only arc such enrollee communications essential in developing improvements 

to care quality and health outcomes, but in the case of government-funded programs such as 

Medicaid and Medicare (including Medicare Advantage health plans ("MA Plans")), these 

communications are in fact required or encouraged. For example, plans are required under their 

contracts with the Centers for Medicaid and Medicare Services ("CMS") to engage in enrollee 

care coordination and case management activities, which in many instances are conducted 

6 
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through telephonic communications with enrollees. In particular, Medicare Advantage Special 

Needs Plans ("SNPs") 5 are required to conduct Health Risk Assessments ("HRAs") of new 

enrollees within 90-days of the beneficiary's effective enrollment date and thereafter reassess 

enrollees annually. 6 Both initial HRAs imd subsequent annual reassessments are expressly 

permitted to be conducted telephonically. 7 As part of their annual reporting requirements, SNPs 

must document that they made at least three call attempts and sent a follow-up letter in efforts to 

contact an SNP enrollee both within 90-days of the effective enrollment date as well as in 

connection with annual reassessments. 8 

In addition, CMS requires each MA Plan to maintain a Quality Improvement Program 

("QIP") and conduct a Chronic Care Improvement Program ("CCIP") as part of their required 

QIP. Again, telephonic communications with beneficiaries play an important role in delivering 

effective case management services, including among other things maintaining early and direct 

contact with beneficiaries post discharge. 9 Similarly, managed care organizations that contract 

with state Medicaid agencies to administer Medicaid benefits are required to engage in 

telephonic communications with members for a variety of purposes, including the provision of 

disease prevention information, care management services, appointments, compliance with care 

regimens and other wellness program related services. 

5 SNPs are Medicare Advantage plans that limit membership to people with specific diseases or characteristics, and 

tailor their benefits, provider choices, and drug formularies to best meet the specific needs of the people they serve. 6 See, e.g. CMS, Medicare Part C Plan Reporting Requirements Technical Specifications Document: Contract Year 

2016, .July 25, 2016, available at: https://www,cms.gov/Medicare/HealthPians/H ealthP!ansGen Info/Down loads/20 16-Part-C -Reporting· Requirements-T ech-Specs72520 16-v02.pdf 7 I d. 8 I d. 9 See, e.g. CMS, Medicare Advantage CC!P Open Door Forum Presentation. March 6, 2013, available at: 

http://optimalsolutionscloud.com/OpcnDoorForum/CCIP-v2.pdf 

7 
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The positive effects of non-marketing health care communications in driving 

improvements in both the quality of care delivered as well as healthcare outcomes is well 

documented. Healthcare plans are at the forefront of developing and utilizing innovative 

strategies that rely on such communications as a means of improving care for enrollees. 

Numerous clinical studies support the benefits of non-marketing healthcare communications and 

underscore the benefits of enacting policies that allow health plans (and all HIPAA covered 

entities) to innovate around the same. 1

° For example, a recent analysis by the Commonwealth 

Fund noted the growing adoption of cell phone interventions by community health centers and 

clinics for chronic disease management. 11 Studies have demonstrated that health care 

interventions using cell phone voice and text messaging can be an effective approach to improve 

health and manage care. 12 Telephone interventions have been shown to improve adherence with 

controlling blood pressure in patients with hypertension 13 and for prompting women to 

participate in follow-up regimens after abnormal pap smears. 14 

10 The effectiveness of Mobile-Health Technologies to Improve ffealth Care Service Delivery Process, PLOS 

Medicine, January 2013, available at: 

http://journals.plos.org/plosmedicine/article?id~ I 0.1371 /journal.pmcd.l 001363 11 Mobile Health and Patient Engagement in the Safety Net: A Survey of Community Health Centers and Clinics, 

The Commonwealth Fund, May 2015 available at: http://www.commonwcalthfund.org/publicationslissuebriefs/20 15/may/mobile-health-and-patient-cngagement-in-the-safety-nel 

tl See Santash Krishna and Suzanne Austin Boren} Hea/thcare via Cell Phones: A Systematic Review~ Telemcdicine 

and e-Health, April2009 available at: http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0027335/ 13 Teresa Harrison, Timothy Ho, Joel Handler, Michael Kanter, Ruthie Goldberg, and Kristi Reynolds, A 

Randomized Controlled Trial of an Automated Telephone Intenention to Improve Blood Pressure Control, Official 

Journal of the American Society of Hypertension, Inc., September 20!3, available at: 

http://onlinelibrary.wilev.com/doil! O.llllijch.l2162/pdf 14 Suzanne Miller, Siu-kuen Hui, Kuang-Yi Wein. John Scarpato, Fang Zhu, Joanne Buzaglo, and Enrique 

Hernandez, Tailored Telephone Counseling to Improve Adherence to Follow-up Regimens after an Abnormal Pap 

Smear Among Minority. Underserved Women, Patient Education Counseling, August 2013, available at: 

http://wviw.ncbi .nlm.nih.govlpmc/articles/PMC3 852173/ 

8 
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In addition, a May 2014 report'S, commissioned by the Department of Health and Human 

Services ("HHS"), identifies five categories of mobile health programs that use text messaging to 

communicate with consumers, health care professionals, and others: 

• Health Promotion and Disease Prevention delivering health information and prevention 

messaging to promote healthy behaviors or referrals to services; 

• Treatment Compliance providing patient reminders to take drugs or attend medical 

appointments to improve management of asthma, diabetes, or other conditions; 

• Health Information Systems and Point-of-Care Support - offering clinical support for 

health professionals and community health workers through telemedicine; 

• Data Collection and Disease Surveillance- obtaining real-time data on disease outbreaks 

from community health workers, patient self-reports, or clinic and hospital records; and 

• Emergency Medical Response- maintaining alert systems that disseminate information in 

an emergency or during disaster management and recovery. 

Health plans have demonstrated strong leadership in this area. For example, some health plans 

initiate phone calls or send text messages to remind members of upcoming appointments, home 

visits, or other notifications aimed at improving their health. These communications include: 

• Case management communications to members with helpful instructions on processes such 

as post-discharge follow-up and medication adherence; 

• Preventative care communications for screenings, vaccinations, and available services; and 

• Health plan benefits communications regarding provider/benefit changes, plan enrollment 

reminders, and even weather emergencies affecting an upcoming appointment. 

Health plans have implemented innovative measures, designed around and dependent on 

an enrollee's voluntary consent to participate (and corresponding ability to withdraw such consent 

at any time), to promote the health and well-being of their enrollees. In many eases, these efforts 

15 Using Health Text Messages to fmprore Consumer Health Knowledge. Behaviors, and Outcomes: An 

Environmental Scan, prepared for the U.S. Department of Health and !Iuman Services by the Mathcmatica Policy 

Research and Public Health Institute, May 2014, available at: 

http://www.hrsa.gov/healthit/txt4tots/environmentalscan.pdf 

9 
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22980.071

are conducted through non-marketing healthcare communications with a plan's enrollee. Plans 

have developed programs that encourage providers to identify enrollees that can benefit from care 

management or other wellness program services already covered under an enrollee's plan, but 

which the enrollee may not be aware are otherwise available. These care management and 

wcllness services include, among others, behavioral health programs, condition management 

services, maternity and lifestyle improvement programs and shared decision making services. In a 

typical case, after a provider has identified a covered program or service that an enrollee would 

benefit from receiving, it is often incumbent upon health plans to proactively communicate with 

the enrollee to ensure they arc following through with their enrollment in such programs, 

scheduling necessary appointments, engaging with the appropriate program providers as well as 

provide those enrollees with corresponding reminders and transmitting related care management 

information. 

In addition, health plans invest significant resources to ensure their communications are 

relevant and valuable to each of their enrollee's unique health status and situation. This allows 

plans to identify individuals that may benefit from participating in covered benefits and services 

related to an enrollee's specific health condition and conduct related wellness outreach efforts. For 

example, this may include notifying an enrollee who suffers from diabetes that their plan offers 

certain weight management or dietary programs they may otherwise be unaware are available and 

are covered under their respective plan. In all instances, an enrollee's decision to utilize such 

benefits and services is voluntary, and if undertaken, can be discontinued by an enrollee at any 

time. However, as a result of such wellness outreach efforts, and because these are services and 

benefits already available to and covered by an enrollee's existing plan, it is no surprise that health 

plans report an extremely high enrollee participation rate in such programs. This indicates 

10 
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22980.072

enrollees view and appreciate these kinds of proactive, individually tailored outreach efforts by 

health plans as a positive and constructive means of engaging in available healthcare services, and 

do not associate such communications with undesired "telemarketing" efforts that would otherwise 

merit preclusion under the TCPA. 

The 2015 Declaratory Order, by referencing only providers, risks curtailing precisely these 

kinds of innovative efforts being undertaken by health insurance plans and other HIPAA covered 

entities to promote and foster the health and well-being of their respective enrollees. 

IV. Conclusion 

AHIP agrees with Petitioners' position that the TCPA rules should be clarified to ensure 

that they are interpreted in a way that is harmonized, consistent with the FCC's prior decisions 

and HIPAA, to allow consumers to receive necessary and vital non-telemarketing calls allowed 

under HIPAA. Accordingly, we support Petitioners' request that the FCC revise its 2015 

Declaratory Order to clarify that: I) the provision of a phone number to a "covered entity" or 

"business associate" constitutes prior express consent for non-telemarketing calls allowed under 

HIPAA for the purposes of treatment, payment, and health care operations (as suggested by 

Petitioners in Exhibit A to their Joint Petition); and 2) that the prior express consent clarification 

and the non-telemarketing health care message exemption be clarified to include HIPAA 

"Covered entities" and "business associates" (as suggested by Petitioners in Exhibit B to their 

Joint Petition). 

11 
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22980.073

SOlCUNA 

Credit Union National Association 

September 21,2016 

The Honorable Greg Walden 

Chairman 

Jim Nussle 

President & CEO 

Subcommittee on Communications and 

Technology 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, DC 20515 

Dear Chairman Walden and Ranking Member Eshoo: 

The Honorable Anna Eshoo 

Ranking Member 

I Phone. 202-~-h745 

Fax; 202-63B-7734 

i JrHJS$I~cuna,coop 

Subcommittee on Communications and 

Technology 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, DC 20515 

On behalf of America's credit unions, I am writing regarding tomorrow's hearing entitled 

"Modernizing the Telephone Consumer Protection Act." The Credit Union National Association 

(CUNA) represents America's credit unions and their more than 100 million members. Thank you 

for the opportunity to comment on this hearing. 

Credit unions understand the importance of consumer protection and support efforts to rein in those 

abusing or taking advantage of consumers. Since their inception they have played a unique role in 

the financial services marketplace as not-for-profit financial cooperatives, owned by their members. 

They provide credit at more affordable rates than most others in the financial services marketplace 

and take their role in providing financial education seriously. 

Communication with credit union members is an essential consumer protection function; members 

need and want to hear from their credit union in a timely and efficient manner when an issue arises 

with their account. Communicating with credit union members can help prevent identity theft and 

stolen data, mitigate the harm once such events have occurred, and give consumers the chance to 

receive other important information about their accounts, such as the ability to avoid late payments. 

Unfortunately, the Federal Communications Commission's (FCC) July 2015 Omnibus Declaratory 

Ruling and Order ("Order") for the Telephone Consumer Protection Act (TCPA) was problematic 

and has impacted credit unions' ability to communicate with their members about pertinent account 

information. We support the concept of preserving consumers' rights to privacy on their cell phones 

and protecting financial information; however, the FCC's Order goes far beyond the scope or 

purpose of the TCPA, which was enacted in 1991 when a cell phone was considered a luxury item 

and smartphones were still years away from production. 

' "' ~ "'" 

cuna erg OFFICE LOCATIONS Wllsilmg!ort, DC. • Mail!Soo, W'~cons1n 

" ~ i%Yk ""' 
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The Order Had an Immediate Adverse Impact, Causing Disarray and Exposing Credit Unions 

to Frivolous Litigation 

When the FCC, on a party-line vote, issued the Order over a year ago, it immediately went into 

effect without having been put out as a proposed rule subject to public comment. As soon as it was 

released, credit unions were sent into a state of disarray about how they could instantaneously 

comply with a document that is well over I 00 pages and filled with onerous language and unclear 

nuances. While the FCC recognized the importance of communications between financial 

institutions and consumers, and did provide certain exemptions, the Commission's ruling created 

obstacles to credit unions' ability to communicate with their members. For small financial 

institutions, with resources already stretched thin on an unprecedented number of new regulatory 

burdens, the resource draining of complying with unclear, outdated, and in some cases largely 

impossible guidance is particularly problematic. 

Congress could not have intended to arbitrarily limit communications between credit unions, which 

are not-for-profit, member-owned financial cooperatives, and their members when it enacted the 

TCPA several decades ago. The confusion created by the TCPA Order has not only increased the 

regulatory burden that credit unions are facing, but it will place additional limits on their ability to 

provide the safest and most affordable products and services to consumers. 

The consequences of the Order extend beyond the credit unions' ability to communicate with 

members because the TCPA carries with it a private right of action. Predictably, the Order has 

attracted the attention of law firms seeking to profit from the exorbitant attorneys' fees and statutory 

damages associated with TCPA lawsuits. Frivolous class action litigation has proven costly and 

detrimental, when credit unions are simply seeking to serve their members in the way they always 

have, and to continue to provide products and service offerings at competitive rates. We believe that 

class action litigation against a credit union makes very little sense in general given the memberowned, cooperative structure of the credit union; it makes even less sense when the litigation is 

based on actions the credit union is taking to protect its members from harm. 

The Exemption for Financial Institutions Provides Minimal Relief 

In its Order, the FCC recognized the importance of receiving information from financial institutions. 

It provided an exemption for calls concerning: (I) transactions and events that suggest a risk of fraud 

or identity theft; (2) possible breaches of the security of customers' personal information; (3) steps 

consumers can take to prevent or remedy harm caused by data security breaches; and ( 4) actions 

needed to arrange for receipt of pending money transfers. 

2 
109 


22980.075

However, the conditions that must be met to qualify for these exempted calls are difficult, if not 

impossible, to meet. The Order requires that the exempted calls must be free-to-end-user calls; in 

other words, there can be no charge of any kind to the consumer. This requirement places an 

unreasonable burden on financial institutions to ensure that notifications do not count against a 

recipient's minutes or texts plan. The technology and resources needed are not readily available to 

the majority of credit unions, particularly smaller credit unions. 

Other conditions to qualify for this exemption apply as well. For example, a credit union must 

initiate no more than three messages (whether by voice call or text message) per "event" over a 

three-day period for an affected account; must otTer recipients within each message an easy means to 

opt out of future messages; and must honor opt-out requests immediately. The technicalities 

associated with each of these requirements creates many unanswered questions, such as what 

constitutes an "event." Additionally, the exemption only allows calls and text messages to be sent to 

wireless numbers provided by the customer of the financial institution. 

The Expansion of What is Considered an Autodialer is Problematic 

Another concerning aspect of the Order is the expansion of what is considered an automated 

telephone dialing system (autodialer). Credit unions need the FCC to define clearly what constitutes 

an autodialer because informational calls using an autodialer to a consumer's cell phone requires 

either oral or written prior express consent. Notably, dissenting FCC Commissioner Ajit Pai 

expressed concern that the language about what is considered an autodialer in the Order is so 

expansive it could even cause a device like a smartphone to now be considered an autodialer. 

Currently, credit unions are not even able to interpret from the Order whether the calling system they 

use qualifies them to be subject to the TCPA. As a result of this ambiguity, some credit unions have 

limited their communications or have been forced to revert to manually dialing calls to members. 

The FCC in its Order leaves it wide open for courts to interpret the autodialer definition. This 

muddled guidance and Jack of certainty is not helpful for credit unions and consumers looking for 

certainty in the law. 

Other Issues that Could Stifle Communication with Credit Union Members 

Additionally, the FCC creates ambiguity about how consumers can revoke consent for autodialed 

calls by stating it can be done at any time and in any reasonable manner. This onerous language is 

problematic because consent could be revoked in almost any manner including through oral 

conversations with an employee at any level of a credit union. Since it is not clear what is a 

"reasonable" way of revoking consent, credit unions theoretically have to monitor all 

communications in every manner with every member and every employee. 

3 
110 


22980.076

Furthermore, the Order increases the possibility of being liable under the TCPA when calling a 

reassigned number that the credit union has previously been given consent to call. The Order makes 

clear that callers can make only one call under a safe harbor before they are considered to have 

actual or constructive knowledge that the number was reassigned. The one call safe harbor does not 

account for the dozens of reasons it may not be possible to connect with the new holder of the 

number in one attempt. The Order indicates that it does not matter whether the phone is answered; 

the caller is still considered to be on notice. For credit unions serving working families who may 

switch jobs, move, or simply can no longer afford one type of wireless carrier plan over another, it 

makes no sense to penalize either the credit union or a member seeking information for switching 

numbers. 

CFPB Statements Have Conflicted with the FCC's Order 

Other federal regulators and consumer groups share CUNA's views about the benefits of 

communicating with consumers on their cell phones. Mobile technology is often the preferred 

method of communication for consumers, and for many younger and lower-income consumers it 

may be their only method to receive communications. This is also the same demographic of 

consumers that can benefit the most when credit unions are able to intervene early to provide 

financial education or counseling. The CFPB, in particular, appears to recognize this benefit of 

increased communication. 

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the charge 

of promoting financial education, researching developments in markets for consumer financial 

services and products, and providing information, guidance, and technical assistance regarding the 

offering and provision of consumer financial products or services to traditionally underserved 

consumers and communities. In this regard, the CFPB has provided the public information about 

how it believes the financial services marketplace should be communicating with consumers on 

mobile devices. In one such recent publication, the CFPB noted, 

"Major development in the consumer tlnancial services market over the past few years has been the 

increasing use and proliferation of mobile technology to access financial services and manage 

personal finances .... Using a mobile device to access accounts and pay bills can reduce cost and 

increase convenience for consumers. By enabling consumers to track spending and manage personal 

finances on their devices through mobile applications or text messages, mobile technology may help 

consumers achieve their financial goals." 

Again, this reasoning directly conflicts with FCC policies that arc making it more difficult to 

communicate with distressed consumers. Notably, credit unions with over $10 billion in assets are 

supervised by the CFPB, and others operate in compliance with numerous consumer financial laws 

4 
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22980.077

that the CFPB has jurisdiction over. As such, conflicting guidance from the CFPB makes it very 

difficult to make compliance decisions concerning communication efforts. 

Congress Should Express Appropriate Oversight Authority 

Decades old, the TCPA has become severely outdated and obsolete in the face of new technologies 

and forms of communication. It is imperative that Congress take action to eliminate the negative 

consequences the FCC's Order is having on both financial institutions and consumers, and consider 

what actions can be taken to assure communication between the two can continue. 

The FCC continues to ignore the input of industry, consumers, Congress, and even the President of 

the United States. It has far exceeded the scope of the authority Congress granted it and also, as 

noted, the FCC did not provide an opportunity for notice and comment on the Order. We urge you 

to address this overreach and take action to hold the FCC accountable to provide more transparency 

to those seeking to comply with laws under its jurisdiction. 

Conclusion 

On behalf of America's credit unions and their more than 100 million members, we thank you for 

your attention to this important matter and we look forward to working with Congress and the 

Administration to create a rule that protects the consumer, while ensuring credit unions can freely 

communicate with their members. 

Sincerely, 

5 
112 


22980.078

FRED UPTON, MICH!G/\N 

CHAIRMAN 

Ms. Michelle Turano 

ONE HUNDRED IH CONGHESS 

FRANK PALLONE. JR .. NEW JERSEY 

RANKING MEMBER 

Congress of the mnlteb ~tates 

j'!)ous-c of i\rpw5rntatil:icl.l 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYRURN Housr: BuiLDING 

WASII!NGlON, DC 20515-6115 

October 12, 2016 

Vice President, Government Affairs and Public Policy 

WellCare Health Plans 

8735 Henderson Road 

Tampa, FL 33634 

Dear Ms. Turano: 

Thank you for appearing before the Subcommittee on Communications and Technology on 

September 22, 2016, to testify at the hearing entitled "Modernizing the Telephone Consumer Protection 

Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format ofyoor responses to these questions should be as follows: (J) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

Also attached are Member requests made during the hearing. The format ofyour responses to 

these requests should follow the same format as your responses to the additional questions for the record. 

To facilitate the printing of the hearing record, please respond to these questions and requests 

with a transmittal letter by the close of business on Wednesday, October 26, 2016. Your responses should 

be mailed to Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn 

House Office Building, Washington, DC 20515 and e-mailcd in Word format to 

Greg. Watson@mai I .house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

f)~L 

I ~Walden Chairman 

Subcommittee on Communications and Technology 

cc: Anna G, Eshoo Ranking Member, Subcommittee on Communications and Technology 

Attachments 
113 


22980.079

October21, 2016 

Greg Watson 

Legislative Clerk 

Committee on Energy & Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

Email: greg.watson@mail.house.gov 

Dear Mr. Watson: 

''WellCare· 

Health Plans 

Michelle G. Turano 

VP, Public Policy & Government Affairs 

Thank you again for the opportunity to appear before the House Energy and Commerce 

Subcommittee on Communications and Technology regarding the Telephone Consumer 

Protection Act. Please find attached my responses to the Questions for the Record from the 

hearing "Modernizing the Telephone Communication Act," held on September 22, 2016. 

If you have any questions, please do not hesitate to contact me. 

Respectfully, 

Michelle G. Turano 

Mailing Address: 8725 Henderson Road 1 Renaissance 21Tampa. Florida 33634 

Telephone: 1-813-206-5606 I Fax. 1·813-206-5527 1 E-mail: michelle.turano@wellcare.com 
114 


22980.080

The Honorable Greg Walden 

1) The FCC's July 2015 Declaratory Ruling and Order contains a provision allowing one call to a 

phone number where the caller believes they have consent, when the number may have been 

reassigned to someone who had not given previous consent. However, this "safe-harbor" has 

been questioned as the recipient isn't required to inform the caller of the reassigned number 

or even answer the call for the rule to take effect. Has the FCC's safe-harbor provision been 

helpful to your business operations? 

The safe-harbor provision is not helpful to a business with a designated membership, such as WeiiCare 

Health Plans, Inc. (hereinafter "WeiiCare"). Wei!Care's outreach is to current members and does not 

include phone calls to non-members. During outreach to a member, there are multiple outcomes that 

may occur during any given call. For example, not all phone numbers have voicemail or an answering 

machine and even some phone numbers with voicemail or an answering machine do not identify the 

party that utilizes the number. Frequently, a phone call to a member will ring continuously with no 

answer. However, in each of those outcomes, despite any evidence a wrong or reassigned number was 

dialed, the safe harbor provision would be triggered and the next phone call would violate the 

Telephone Consumer Protection Act (hereinafter "TCPA"). See July 10, 2015, FCC Declaratory Ruling and 

Order 1111 71-72. As pointed out in the question, many recipients fail to notify our business that they 

have reassigned a number, which Inhibits our ability to comply with our communication obligations with 

our members. Thus, our business and contractual requirements may be hampered if we are unable to 

reach a live individual, and open ourselves to liability if we try to speak in person with someone over the 

phone as a follow up to a missed call. We believe that with some minor tweaks, such as requiring the 

recipient to Inform us that the number has been reassigned and ensuring it doesn't go Into effect until 

we speak with the new owner of the number directly, the safe-harbor provision would be much more 

helpful to us. 

2) In an August Reuters article, Allison Frankel discusses "'Professional" robocall plaintiffs and 

the 'zone of interest' defense," specifically pointing out businesses started by individuals to 

profit off of filing TCPA lawsuits. When the law was enacted, do you believe its intent was to 

encourage these plaintiffs and the businesses that benefit from them? 

WeiiCare believes that Congress had the best of intentions when originally passing the TCPA with the 

goal of protecting consumers from unsolicited and unwanted communications. Managed health care, 

telecommunications and the way consumers receive information has changed and developed 

significantly since the TCPA's passage. Consumers now rely heavily on communications from their health 

plans in order to maintain their health and administer their health care. It is regretful that these 

companies are taking advantage of a law implemented to protect consumers from unwanted calls and 

causing consumers to potentially miss out on the benefits health care outreach can provide. 

3) The Do Not Call Section of the TCPA states: "It shall be an affirmative defense in any action 

bought under this paragraph that the defendant has established and implemented, with due 

care, reasonable practices and procedures to effectively prevent communications in violation 

of the regulations prescribed under this subsection." Do you believe this affirmative defense 

should also be applied to the Private Right of Action section? Why or why not? 

The TCPA provides a private right of action for violations and statutory damages in the amount of $500 

for each violation and up to $1,500 for each willful violation. When multiplied against a large number of 
115 


22980.081

calls, text messages, or fax transmissions, potential damages in these cases can be significant. As stated 

previously, WeiiCare is outreaching its membership. WeiiCare is heavily regulated by H!PAA and other 

state and federal regulations in its communications with its membership. In large part due to those 

regulations and best business practices, WeiiCare strives to implement robust safeguards along with 

comprehensive policies and procedures to ensure Compliance. Plaintiffs filing class actions, typically and 

strategically file broad, generic and all-encompassing lawsuits in order to achieve greater likelihood of 

success in there outcomes. The challenge for businesses such as Wel1Care is keeping up with the pace of 

the ever-changing TCPA litigation landscape. TCPA cases are time consuming and expensive to defend, 

even though the defendant may be in compliance with the law and forward-thinking safeguards. A safe· 

harbor affirmative defense is in the best interest of companies who follow the law and implement 

safeguards to do so. 

The Honorable Marsha Blackburn 

1) In your opinion, what are the three things Congress makes certain we change in the TCPA 

when updating the Act? 

The FCC should clarify and confirm the regulation of the use of health plan member telephone numbers 

under the TCPA with the regulation of the same use under the Health Insurance Portability and 

Accountability Act (HIPAA). They should do this by ruling that the provision of a phone number of a 

"covered entity" or "business associate" (as those terms are defined under HIPAA) for the purposes of 

treatment, payment, or health care operations as well as declaring that the prior express consent 

clarification and the non-telemarketing health care message exemption in the agency's 2015 

Declaratory Order be clarified to include "HIPAA covered entities" and "business associates." 

These changes should be expedited because it affects the messaging of critical health care decisions and 

information that helps consumers become engaged in their own positive health decisions. In 

accordance with HIPAA, such messaging is used to notify consumers about health care services that are 

included in an existing plan of benefits. 

The TCPA permits one call to be made without liability after a telephone number has been reassigned 

from the person who gave consent to another person who has not given consent (such as a family 

member or caregiver) to receive communications. Even if this call does not yield actual knowledge of 

the reassignment, the caller is deemed to have constructive knowledge, and will be liable for all calls 

thereafter. The FCC should update its policy regarding reassigned phone numbers by allowing 

appropriate health care related calls to reassigned numbers so that beneficiaries are not deprived of 

vital health care communications that they want and need. 
116 


22980.082

FRED UPTON, M!CH!G/\!\ 

CHAli\MAN 

Mr. Shaun W. Mock 

Chief Financial Officer 

<!tongrcs5 of 

COMMITTEE ON 

October 12, 2016 

Snapping Shoals Electric Membership Corporation 

14750 Brown Bridge Road 

Covington, GA 30016 

Dear Mr. Mock: 

f"flANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

Thank you for appearing before the Subcommittee on Communications and Technology on 

September 22, 2016, to testify at the hearing entitled "Modernizing the Telephone Consumer Protection 

Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The fonnat of your responses to these questions should be as follows: (1) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

Also attached arc Member requests made during the hearing. The fonnat of your responses to 

these requests should follow the same format as your responses to the additional questions for the record. 

To facilitate the printing of the hearing record, please respond to these questions and requests 

with a transmittal letter by the close of business on Wednesday, October 26, 2016. Your responses should 

be mailed to Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn 

House Office Building, Washington, DC 20515 and e-mailed in Word fonnat to 

Greg. Watson@mai I .house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

~~~ Chairman 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo Ranking Member, Subcommittee on Communications and Technology 

Attachments 
117 


22980.083

Additional Questions for the Record 

Modernizing the Telephone Consumer Protection Act 

September 22,2016 

Mr. Shaun Mock 

Chief rinancial Officer 

Snapping Shoals Electric Membership Corporation 

The Honorable Greg Walden 

1. The FCC's July 2015 TCPA Declaratory Ruling and Order contains a provision allowing 

one call to a phone number where the caller believes they have consent, when the number 

may have been reassigned to someone who had not given previous consent. However, this 

"safe-harbor" has been questioned as the recipient isn't required to inform the caller of the 

reassigned number or even answer the call for the rule to wke effect. Has the FCC's safeharbor provision been helpful to your business operations? 

The "one-call" safe-harbor provision is appreciated, but bewildering and ineffective. 

We strongly believe that adding meaningful safe-harbor provisions to the TCPA will be 

at the center of unraveling the cumbersome regulations that have stifled legitimate 

business communication to date. Chief among these difficulties is the particularly high 

standard to which businesses like Snapping Shoals EMC must operate with regard to 

reassigned phone numbers and the corresponding definition of"called party". 

Unfortunately, the ·'one-call" safe-harbor provisions granted within r:CC Order 15-72 

underestimate the complexity and real-world cost required to meet the "one-call" 

standard. The FCC asserts 1 that prudent best practices and existing technology in the 

marketplace should be enough to protect genuine small-business callers. We at least 

agree in principal that best practices and technology will play a major role in limiting 

business callers' risk, while also protecting consumers from unwanted phone calls. Yet, 

the FCC fails to acknowledge the very real probability that a legitimate business caller 

who places millions of automated phone calls will most likely place an errant phone call 

even with the most comprehensive business practices and best available technology that 

money can buy. That is to say nothing of the many small businesses trying to offer 

competing services with much more constrained budgets. Even worse, by not 

acknowledging some basic responsibility on the part of the consumer, the FCC fails to 

acknowledge that a consumer acting in bad-faith could engineer an enormous windfall by 

simply ignoring one of these errant phone calls. 

2. In an August Reuters article, Alison Frankel discusses "'Professional' robocall plaintiffs 

and the 'zone ofinteresr' d~fimse". specificallv pointing out "businesses" started by 

individuals to prc!(it off of filing TCPA lawsuits. When the law was enacted, do you believe 

its intent was to encourage these plaintiff\' and the businesses that benefit from them? 

At its core, the basic premise of the TCPA is to protect the American consumer from 

receiving unwanted, burdensome communications from an unwanted third-party. 

1 FCC Order 15-72 para. 72 
118 


22980.084

Additionally, Congress recognized that even the best legislation should have limits and 

acknowledged that the TCP A was not intended to prohibit legitimate business 

communications. I suspect that very few Americans' would disagree with these basic 

tenets of the original legislation of 1991. In absence of any provisions to the contrary, we 

can infer that the original TCPA legislation broadly assumed that only unscrupulous 

callers would be subject to its regulations. In today's reality even organizations with the 

best of intentions, who are seeking to provide critical consumer driven information, have 

gotten caught up in a web of unscrupulous plaintiff attorneys that have managed to take 

advantage of the strict liability provisions found within the statute. These increasingly 

outdated statutes do not allow tor even basic aflinnative defenses of good-faith and 

subsequent reasonable interpretation of the law. It is fair to assume that the original 

authors of the TCPA never imagined a world in which consumers would not only ask for, 

but demand constant communication from their service providers. It is also fair to assume 

that these original authors did not intend to line the pockets of those individuals or 

organizations that would inevitably seek to build an ill-gotten fortune from within the 

well intentioned TCP A legislation. 

3. The Do Not Call Section of the TCPA states: "It shall be an affirmative defense in any action 

brought under this paragraph that the delendant has established and implemented, with due 

care. reasonable practices and procedures to effectively prevent communications in violation 

of the regulations prescribed under this subsection." Do you believe this affirmative defense 

should also be applied to the Private Right of'Action section? Why or why not? 

The addition of a common-sense, ·'good faith'' defense to Private Rights of Action 

litigation would provide substantial protection and clarity for the American business 

community. In lieu of a common sense, "good-faith" affirmative defense many 

businesses realize that 100% compliance is not probable or realistic. As noted above, we 

believe that in MOST cases a strong system of compliance, coupled with further 

development and integration of emerging tech solutions should provide protection to both 

the American consumer and legitimate business communication. Unfortunately, even the 

best procedures and technology will not prove effective in ALL situations. 

For example; my small utility could easily place two million low-balance notifications 

phone calls to our prepaid members in a year. These courtesy notifications were provided 

at member request based on a lmv balance threshold amount of their choosing. 

Hypothetically, let's assume that all best practices are implemented and no expense has 

been spared to ensure compliance. Even with world-class equipment and procedures, at 

best our automated phone calls reach the intended "called party" 99.9% of the time. That 

small one tenth of one percent uncertainty could generate 20,000 potential TCPA 

violations at $500 per phone call, or $10.000,000. In absence of a reasonable affirmative 

defense; such risks are unreasonable and the reason that Snapping Shoals EMC 

discontinued all automated phone notification programs in June 2014. 
119 


22980.085

The Honorable Gus Bilirakis 

1. According to your testimony, your company had to discontinue what you deemed to be 

an important customer service because of the risks associated with litigation under the 

TCPA. Some businesses have opted to ensure compliance with TCPA by implementing 

rigorous monitoring of independent third parties with whom they contract. 

U11fortunately, with this oversight comes vicarious liability concerns and businesses must 

weigh the costs ofTCPA driven oversight against the potential for litigation. 

a. If the TCP A were modified so an affirmative defense could be available for 

organizations who adopt a rigorous compliance program. would you he more likely 

to invest in these types of programs? 

Businesses like Snapping Shoals EMC have no desire to place unnecessary or unwanted 

phone calls to our members. Our programs are designed to bring value and convenience to those 

members that we serve. We agree that the business community should do our part in taking 

reasonable steps to insure that consumer privacy is protected and communication lines remain 

open. The FCC has outlined numerous best practices' that it believes should protect consumers 

and offset any business liability concerns. These suggestions could be a great first step towards 

compliance and would likely greatly reduce any unwanted, errant phone calls. However, even 

combining this patch-work of best practices cannot and will not result in l 00% compliance. As 

mentioned in earlier testimony, even a success rate of99.9% could leave my small utility exposed 

to 20,000 potential TCPA violations annually. That is 20,000 violations at $500 per violation 

regardless of the time and money that we invested to prevent unwanted phone calls. For most 

small businesses, the risks do not out weight the reward. 

In my opinion, providing an affirmative defense, which acknowledges the good-faith 

efforts of legitimate business callers, would be the single most effective measure to reducing 

undue liability and protecting consumer interest. TCPA compliance is a large, complicated affair 

to which no single silver bullet solution exists. Even a combination of best practices and 

technology will leave large gapping sources of potential liability. For example, third-party 

"scrubbing" services are frequently cited as a means for business callers to ensure compliance. 

However, even these "scrubbers" acknowledge that their databases will never be 100% accurate. 

One such service boasts that it contains over 80% of all mobile records. 80% compliance is a 

great starting point, but for my utilily that still leaves potentially hundreds of thousands of 

potential violations on the table. FUtthcr, these scrubbing serves are far from the panacea that 

some have described. Even phone numbers contained within their databases leave much 

ambiguity to be resolved, ot1en through expensive, manual processes. Most services provide a 

confidence score that indicates their ability to match a phone number against a confirmed active 

user. Inconclusive matches are common place and must be manually resolved. Again, no silver 

bullet exists so that simply writing a check will ever erase all liability concerns. 

2 FCC Declaratory Ruling and Order 15-72, para. 86 
120 


22980.086

Attachment 2-Mcmbcr Requests for the Record 

During the hearing. Members asked you to provide additional information for the record, and 

you indicated that you would provide that information. For your convenience, descriptions of 

the requested information are provided below. 

The Honorable Marsha Blackburn 

I. In your opinion, what are three things Congress make certain we change in the TCPA 

when updating the Act? 

Encourage the Use of Technology: Technology could one day be developed that would prove 

many of our more nuanced disagreements over jargon and lexicon irrelevant and outdated. True 

meaningful improvement to a problem as large and complex as stopping unwanted phone calls, 

and by extension updating any TCPA legislation, should acknowledge that technology will 

always evolve outside the original scope of any updated legislation. The TCPA should enable 

and encourage big solutions to such a big problem. Proactive solutions aimed at thwarting 

unscrupulous callers at the origin of the phone call, coupled with more robust do-not-call 

technology built into our smart phones and networks will be a critical element in our campaign 

to protect consumer interest, while encouraging legitimate business communication. 

Improve Number Reassignments: Number reassignments can be difficult to identify after the 

fact which is confounded further by varying procedures between phone carriers. Some carriers 

will reassign a phone number in as few as 30 days, while others wait 60 or even 90 days. 

Although, new technologies are far from perfect and expensive, they will have to be part of the 

solution. One small step that could be implemented in the near term would be to extend and 

standardize the holding period between reassigning phone numbers. The benefits would be 

twofold: I) Additional time would allow phone carriers the opportunity to establish a reassigned 

phone registry. This registry should require a number to be held at least 90 days before 

reassignment. 2) Additional time would allow business callers time to implement additional 

quality control processes aimed at detecting number reassignments without fear of inadvertently 

flagging active accounts. 

Affirmative Defense: It is simply not reasonable to ask American businesses to invest millions 

into new technology and processes without some assurance that they will be given an 

oppmtunity to defend themselves against the inevitable errant phone call. Put simply, the risk 

does not out weight the reward; all the while many American consumers that have grown to 

depend on timely phone notifications are left quite literally in the dark regarding their business 

affairs. The FCC has repeatedly suggested that various best practices should protect consumers 

and limit liability, yet offer no relief to those companies that follow their guidelines and still find 

themselves confronted with litigation. 

In considering language for any potential '·safe-harbor" provisions; Congress should avoid 

codifying specific best practices given the ever changing nature of telecommunications. Broad 
121 


22980.087

language that speaks to a caller's culture of compliance and willingness to respond to consumer 

wishes would prove more meaningful in the future. Additionally. Congress should consider 

providing language that would seek to balance compliance with over burdensome, expensive 

solutions that American small businesses cannot afford. 
122 


22980.088

FRED UPTON, MICHIGAN 

CHAIRMAN 

!-f1ANK PALLONE, JR,, NEW JERSEY 

RANKING MEMBER 

ONL HUNDRED f"UUHTCt:NTH CONGRESS 

<Congre£i5 of the (!ltnttcb $tatc5 

,l!)oufic of :1..:\tprtficntatil.lrfi 

Mr. Spencer W. Waller 

Director 

Institute for Consutner Antitrust Studies 

Loyola University Chicago 

I 032 West Sheridan Road 

Chicago, IL 60660 

Dear Mr. Waller: 

October 12, 2016 

Thank you for appearing before the Subcommittee on Communications and Technology on 

September 22,2016, to testify at the hearing entitled "Modernizing the Telephone Consumer Protection 

Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows:(!) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

Also attached arc Member requests made during the hearing. The format of your responses to 

these requests should follow the same format as your responses to the additional questions for the record. 

To facilitate the printing of the hearing record, please respond to these questions and requests 

with a transmittal letter by the close of business on Wednesday, October 26,2016. Your responses should 

be mailed to Greg \Vatson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn 

House Office Building, Washington, DC 205 I 5 and e-mailed in Word format to 

Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

Chairman 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo Ranking Member, Subcommittee on Communications and Technology 

Attachments 
123 


22980.089

Mr. Greg Watson 

Legislative Clerk 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

October 24,2016 

Re: Additional Questions for the Record, Hearing on Modernizing the Telephone 

Consumer Protection Act, September 22, 2016 

Dear Mr. Watson: 

Enclosed please find my responses to the Additional Questions for the Record and 

Member Request for the Record submitted by the Honorable Greg Walden and the Honorable 

Marsha Blackburn. As with my written statement and my testimony, I provide these responses 

in my individual capacity as a teacher and scholar in the area of consumer protection law. It was 

an honor to testify before the Subcommittee on Communications and Technology in this matter. 

Please contact me if the Subcommittee needs anything further regarding this important consumer 

protection issue. 

Professor and Director 

Institute for Consumer Antitrust Studies 

Loyola University Chicago School of Law 
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Attachment !-Additional Questions for the Record 

The Honorable Greg Walden 

1. In an August Reuters article, Alison Frankel discusses "Professional robocall plaintiffs 

and the 'zone of interest' defense", specifically pointing out "businesses" started by 

individuals to profit off of filing TCPA lawsuits. When the law was enacted, do you 

believe its intent was to encourage these plaintiffs and business that benefit from them? 

Although I have not extensively researched the zone of interest defense referred to in the Frankel 

article, the article appears to conflate three different issues. The first is the question of 

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decision. The second issue is statutory standing under the TCPA. The final issue is whether the 

statute was violated in a particular case and whether a particular plaintiff can be deemed to have 

consented to the commtmications in question. The cases referred to in the Frankel article seem 

to conflate these very different considerations and thus do not present a coherent zone of interest 

defense. 

I have the fwther concern that such a zone of defense conflicts with the plain meaning of the 

TCPA and docs not appear to have been contemplated by Congress in creating the TCPA and its 

dual system of public and private enforcement. The TCPA establishes a requirement of prior 

consent for robocalls and certain fax messages and sets out a system of public and private 

enforcement for violations. 

The TCPA is designed as a deterrent to non-consensual telephone calls, and inevitably led to a 

system of primarily class action enforcement because damages are limited to $500 ($1500 for a 

willful violation) without the statutory availability of attorneys fees for successful plaintiffs as is 

the case in many other consumer protection statutes. Class actions inevitably arose in order to 

pool large numbers of small claims and to provide the possibility of seeking judicial approval as 

to what constitutes a reasonable attorney fees under Rule 23 of the Federal Rules of Civil 

Procedure. Thus I do not believe that a zone of interest defense was contemplated by Congress 

in passing the TCPA nor represents an appropriate reading of the TCPA as drafted. 

TheTCPA does not prohibit consensual telephone calls, texts, and faxs. It may be appropriate in 

an individual private action under the TCPA to consider whether the named plaintiff"consented, 

in word or deed to the robocalls in question and whether such a plaintiff would be an appropriate 
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named plaintiff in a particular class action. Aside from consent, I do not believe a zone of 

interest defense is appropriate, regardless of whether Congress did or did not consider how many 

non-consensual robocalls a particular person might receive and bring to the Courts. 

2. The Do Not Call Section of the TCPA states: "It shall be an affirmative defense in any 

action brought under this paragraph that the defendant has established and implemented, 

with due care, reasonable practices and procedures to effectively prevent communications 

in violation of the regulations prescribed under this subsection." Do you believe this 

afflrmative defense should be applied to the Private Right of Action section? Why or 

why not? 

I do not support creating such an affirmative defense in connection with the private right of 

action section of the TCPA. ln creating the affirmative defense for public enforcement, 

Congress appeared to assume that there would be robust public enforcement by the Federal 

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creating a separate private cause of action Congress created a strict liability cause of action, but 

limited statutory damages and did not include the right to attorneys fees. Another affinnative 

defense in private litigation would create unhealthy incentives for marketers to argue that 

systems that have failed to prevent unwanted robocalls should none the less relieve them of 

liability for violations of the law. It would also create unwelcome incentives for sellers to utilize 

third party service provider to violate the law for their pecuniary interest, and allow both the 

sellers and the third party service provider to argue that each had an appropriate system in place 

and that any violation was the responsibility of the other party. 

Attachment 2-M em her Requests for the Record 

The Honorable Marsha Blackburn 

1. In your opinion, what are three things Congress make certain we change in the TCPA 

when updating the Act? 

The most important thing that Congress could do in updating the TCP A is to create a Do Not 

Contact system that operates across all devices and technologies to protect consumers from 

unwanted marketing contacts. Such a system should differ from the existing Do Not Call 

Registry, in that it would apply to informational as well as telemarketing calls. 

All set forth in the 2014 published version of the report on the TCPA by the Institute for 

Consumer Antitrust Studies, I would also recommend increasing public enforcement by creating 

greater incentives for State Attorneys General to enforce the law (through the availability of 
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attorneys fees and increased penalties) and to empower the United States Federal Trade 

Commission to bring suit under the TCPA. 

With respect to private entbrcement, cellular telt!phone companies should be required to 

participate in a database that would keep track of recycled cell phone numbers. This would allow 

callers to utilize the database before they make robocalls, avoiding calling reassigned numbers, 

and the liability that comes with this situation. A revised TCPA also should clearly state that 

callers and sellers have an affirmative obligation to (a) obtain and document consent from the 

called party as to the subject matter of the call before the call is made, and (b) keep records of 

the calls they make. 
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FRED UPTON, MICHIGAN 

CHAIRMAN 

Mr. Richard D. Shockey 

Principal 

Shockey Consulting 

Silver Fox Lane 

Reston, VA 20191 

Dear Mr. Shockey: 

October 12,2016 

FRANK PALLONE, JR., NEW JERSEY 

BANKING MfMBEH 

Thank you for appearing before the Subcommittee on Communications and Technology on 

September 22,2016, to testify at the hearing entitled "Modernizing the Telephone Consumer Protection 

Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

hold, and (3) your answer to that question in plain text. 

Also attached are Member requests made during the hearing. The format of your responses to 

these requests should follow the same format as your responses to the additional questions for the record. 

To facilitate the printing of the hearing record, please respond to these questions and requests 

with a transmittal letter by the close of business on Wednesday, October 26, 2016. Your responses should 

be mailed to Greg Watson, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn 

House Office Building, Washington, DC 20515 and c-mailcd in Word format to 

Greg.Watson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

nan 

Subcommittee on Communications and Technology 

cc: Anna G. Eshoo Ranking Member, Subcommittee on Communications and Technology 

Attachments 
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22980.094

SHOCKEY CONSULTING LLC 

October 25, 2016 

Honorable Greg Walden 

Chairman 

Subcommittee on Communications and Technology 

Committee on Energy and Commerce 

House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515 

RE: "Modernizing the Telephone Consumer Protection Act" 

Dear Chairman Walden: 

Richard D. Shockey, Principal 

2427 Silver Fox Lane 

Reston, Virginia 20191 

+1 (703) 593-2683 Voice 

richard@shockey.us 

rshockey1 01 @gmail.com 

www.shockey. us 

Thank you once again for the honor and privilege of permitting me to testify before your 

subcommittee on Communications and Technology in the matter of Modernizing the Telephone 

Consumer Protection Act (TCPA) on September 22, 2016. 

We are all aware of the problem of robocalls and Caller ID spoofing. It has certainly lead to 

what some of us in the technology industry have referred to as "security fatigue". 1 Our fellow 

citizens are simply frustrated that nothing has been done to stop the illegal robocalls and 

businesses are frustrated that they are being unfairly punished for initiating legal automated 

communications. 

Mr. Chairman, the TCPA and the laws in general in this area are, in fact, out of date and do not 

reflect the clear intent of Congress to both protect the privacy of the American people while 

allowing reasonable automated communication necessary for the safeguard of public health, 

safety and property. 

In my opinion, the problem needs to be addressed on both sides of the equation- both the 

problems of legal automated communications and the more vicious problem of clearly illegal 

automated communications. 

I wish again to restate my belief that both the TCPA, as well as the Truth in Caller ID Act, need 

to be revisited at the same time if there is going to be progress in this matter. TCPA has gone 

1 https://www.nist.gov/news-events/news/2016/10/security-fatigue-can-cause-computer-users-feel-hopelessand-act-recklessly 
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22980.095

too far in punishing legitimate businesses and the Truth In Caller ID act has not done enough to 

dissuade illegal actors. 

Tomorrow, October 26, 2016, should be a significant day in the evolution of solutions to these 

problems as the industry-led Strike Force will report to the FCC. I am very aware of some of the 

technical solutions that will be proposed and I support this effort. 

Permit me then to answer some of the additional questions posed by you and the Honorable 

Marsha Blackburn. 

If you have any questions or require any additional information relative to these issues and the 

Strike Force report, or if I may be of further service to your Committee, Congressional Staff or 

the American people in this matter, please do not hesitate to contact me. 

Very truly yours, 

SHOCKEY CONSULTING LLC 

Richard D. Shockey 

Principal 

2 
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Response to Questions for the Record 

Questions from the Honorable Greg Walden 

Question #1: In an August Reuters article Allison Frankel discusses "Professional robocall 

plaintiffs and the "zone of interest" defense specifically point out "businesses" started by 

individuals to profit off of filing TCPA lawsuits. When the law was enacted do you believe its 

intent was to encourage these plaintiffs and the businesses that benefit from them? 

Response: Obviously not. The clear intent of Congress has been subverted. 

In addition, I have recently noted several other articles that may have relevance on your 

ongoing deliberations. Ms Frankel has also noted another recent case from the Supreme Court 

on the definition of "injury-in-fact" which has relevance to TCPA. 2 34 It might be useful for 

potential plaintiff's to actually demonstrate actual harm before going before the Courts. The 

current state of affairs has created a bizarre form of regulatory entrapment. 

Question #2: The Do Not Call section of the TCPA states: "It shall be an affirmative defense 

action brought under this paragraph that the defendant has established and implemented, with 

due care, reasonable practices and procedures to effectively prevent communications in 

violation of the regulations prescribed under this subsection." Do you believe this affirmative 

defense should also be applied to the Private Right of Action Section? Why or Why not? 

Response: Yes' I would go even further in looking at well understood legislative language 

surrounding "Safe Harbor" as well as "In Good Faith" provisions that better protect businesses 

that by accident or inadvertently contact consumers. The clear example of this is contact that 

occurs when the telephone number has been reassigned. 

2 http://blogs.reuters.com/alison-frankel/2016/05/20/early-spokeo-fallout-privacy-defendants-try-tocapitalize/ 

3 http://www.jdsupra.com/legalnews/spokeo-inc-v-robins-and-the-tcpa-the-21119/ 

4 https://www.mcguirewoods.com/Ciient-Resources/Aierts/2016/8/Court-Finds-Spokeo-Cioses-DoorTCPA-Ciaim.aspx 

3 
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Member Requests for the Record 

Questions from the Honorable Martha Blackburn 

Question #1: In your opinion, what are the three things Congress make certain we change in the 

TCPA when updating the Act? 

Response: The problem of robocalls and the TCPA cannot be viewed in isolation. There are 

two basic problems. First is the issue of perfectly legitimate automatic communications by 

legitimate businesses with clear prior business relationships. This problem was highlighted by 

the other panelists in the health care, financial services and utility industries, and even 

public/private school officials, that need to get timely information of vital importance to 

consumers. 

The second problem is the obvious illegitimate businesses that have no prior business 

relationships with consumers that are illegally targeting consumers with unsolicited robocalls 

and fraudulent solicitations. 

My three suggestions are: 

1. It is highly recommended that Congress revisit the Truth in Caller ID Act at the same 

time that it reviews TCPA The Truth in Caller 10 Act carried a fatal flaw in that it 

required "proof of intent to defraud" as the test for actions under the Act. Proof of intent 

is notoriously difficult to prove and the result of this seemingly innocent clause was to 

virtually legalize illegal robocalls and spoofing. 

2. It is also clear that TCPA and the Truth in Caller 10 act need to more formally 

incorporate different types of tests that the courts can apply in judging the activity in 

question. It is not clear that either Act carries sufficient "Safe Harbor", "In Good Faith" or 

"Proof of Injury-In-Fact" that would give businesses some protection from the clearly 

frivolous suits that are plaguing legitimate businesses. 

3. I am not a lawyer, but it is clear that recent court decisions involving the FCC and other 

regulatory agencies have often centered on Authority to Act. In the absence of clear 

guidance from Congress, Courts will be forced to apply the "Chevron Deference" 

standard. What the American people and businesses need is clarity. "Yes you can do 

this.", "No you cannot do that." Ambiguity only breeds court cases; therefore it is 

imperative that legislative drafters need to be very specific in the language being 

proposed. As the robocall Strike Force reports, it may become necessary to revisit 

some Authority to Act provisions as it is essential to establish a new Telephone Number 

Trust Anchor as part of the A TIS-SIP Forum STIR/SHAKEN framework proposal that will 

be recommended by the Strike Force. 

4