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H.R. 3035, THE MOBILE INFORMATIONAL CALL 

ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

NOVEMBER 4, 2011 

Serial No. 112–103 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

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 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

LEE TERRY, Nebraska 

Vice Chairman 

CLIFF STEARNS, Florida 

JOHN SHIMKUS, Illinois 

MARY BONO MACK, California 

MIKE ROGERS, Michigan 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

BRETT GUTHRIE, Kentucky 

ADAM KINZINGER, Illinois 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

EDWARD J. MARKEY, Massachusetts 

MICHAEL F. DOYLE, Pennsylvania 

DORIS O. MATSUI, California 

JOHN BARROW, Georgia 

DONNA M. CHRISTENSEN, Virgin Islands 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(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. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 6 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 6 

Hon. Michael F. Doyle, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 14 

Hon. Lee Terry, a Representative in Congress from the State of Nebraska, 

opening statement ................................................................................................ 14 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 15 

Prepared statement .......................................................................................... 17 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 19 

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

Hon. Edolphus Towns, a Representative in Congress from the State of New 

York, opening statement ...................................................................................... 23 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 141 

WITNESSES

Faith Schwartz, Executive Director, Hope Now Alliance ..................................... 68 

Prepared statement .......................................................................................... 70 

Answers to submitted questions ...................................................................... 142 

Stephen A. Alterman, President, Cargo Airline Association ................................ 80 

Prepared statement .......................................................................................... 82 

Answers to submitted questions ...................................................................... 143 

Delicia Reynolds Hand, Legislative Director, National Association of Consumer Advocates .................................................................................................. 87 

Prepared statement .......................................................................................... 89 

Answers to submitted questions ...................................................................... 144 

Gregory F. Zoeller, Attorney General, State of Indiana ....................................... 104 

Prepared statement .......................................................................................... 106 

Answers to submitted questions ...................................................................... 147 

Michael Altschul, Senior Vice President and General Counsel, CTIA—The 

Wireless Association ............................................................................................ 122 

Prepared statement .......................................................................................... 124 

Answers to submitted questions ...................................................................... 149 

SUBMITTED MATERIAL

Letter, dated November 3, 2011, from Ioana Rusu, Regulatory Counsel, Consumers Union, to Mr. Walden and Ms. Eshoo, submitted by Ms. Eshoo ........ 8 

Letter, dated October 27, 2011, from Americans for Financial Reform, et 

al., to Mr. Upton and Mr. Waxman, submitted by Ms. Eshoo ......................... 11 

Letter, dated November 2, 2011, from Jane Thielen, Collections, Bethel University, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ..................... 24 

Letter, dated November 3, 2011, from Judy Renschler, Perkins Loan Manager, Butler University, to Mr. Walden and Ms. Eshoo, submitted by Mr. 

Terry ...................................................................................................................... 25 

Page

IV 

Letter, dated November 3, 2011, from Donna Chrestay, Assistant Director, 

Student Accounts, Carnegie Mellon University, to Mr. Walden and Ms. 

Eshoo, submitted by Mr. Terry ........................................................................... 26 

Letter, dated November 3, 2011, from R. Bruce Josten, Executive Vice President, Government Affairs, Chamber of Commerce of the United States 

of America, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ............... 27 

Letter, dated November 2, 2011, from Marianne Riddle, Bursar, Georgetown 

University, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ............... 28 

Letter, dated November 3, 2011, from Floyd E. Stoner, Executive Vice President, Congressional Relations and Public Policy, American Bankers Association, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ..................... 29 

Letter, dated November 3, 2011, from Tony Williams, Executive Director, 

Arkansas Student Loan Authority, to Mr. Upton and Mr. Waxman, submitted by Mr. Terry ............................................................................................. 31 

Letter, dated November 2, 2011, from Erin Klarer, Vice President, Government Relations, Finance and Administration Cabinet, Kentucky Higher 

Education Assistance Authority, to Mr. Guthrie, submitted by Mr. Terry ..... 33 

Letter, dated November 2, 2011, from David A. Feitz, Executive Director, 

Utah Higher Education Assistance Authority, to Mr. Upton and Mr. Waxman, submitted by Mr. Terry .............................................................................. 35 

Letter, dated November 2, 2011, from Kimberley A. Kercheval, Executive 

Associate Bursar, Indiana University, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ............................................................................................. 36 

Letter, dated November 2, 2011, from Jean Schloemer, Federal Perkins Loan 

Coordinator, Wartburg College, to Mr. Walden and Ms. Eshoo, submitted 

by Mr. Terry ......................................................................................................... 37 

Letter, dated November 2, 2011, from Larry Rock, Director of Student Loan 

Repayment, Concordia College, to Mr. Walden and Ms. Eshoo, submitted 

by Mr. Terry ......................................................................................................... 38 

Letter, dated November 3, 2011, from William P. Killmer, Senior Vice President, Legislative and Political Affairs, Mortgage Bankers Association, to 

Mr. Upton, Mr. Waxman, Mr. Walden, and Ms. Eshoo, submitted by Mr. 

Terry ...................................................................................................................... 39 

Letter, dated November 3, 2011, from Jonathan M. Weisgall, Vice President, 

Legislative and Regulatory Affairs, MidAmerican Energy Holdings Company, to Mr. Upton and Mr. Waxman, submitted by Mr. Terry ...................... 41 

Letter, dated September 23, 2011, from American Bankers Association, et 

al., to Mr. Upton and Mr. Waxman, submitted by Mr. Terry .......................... 45 

Letter, dated November 2, 2011, from Karla Sanderson, Loan Coordinator, 

Oberlin College and Conservatory, to Mr. Walden and Ms. Eshoo, submitted 

by Mr. Terry ......................................................................................................... 47 

Letter, dated November 3, 2011, from Suzanne Dominick, Accounts Receivable Supervisor, Seton Hill University, to Mr. Walden and Ms. Eshoo, 

submitted by Mr. Terry ....................................................................................... 48 

Letter, dated November 2, 2011, from Sharie Palmer, Director of Collection/ 

Planned Giving Coordinator, Valparaiso University, to Mr. Walden and 

Ms. Eshoo, submitted by Mr. Terry .................................................................... 49 

Letter, dated November 3, 2011, from Thomas R. Kuhn, President, Edison 

Electric Institute, to Mr. Terry and Mr. Towns, submitted by Mr. Terry ....... 50 

Letter, dated November 2, 2011, from Tony Bordeaux, Associate Director, 

Loans Receivable and Collections, The University of Alabama, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ..................................................... 52 

Letter, dated November 3, 2011, from Dennis J. DeSantis, Associate Vice 

Chancellor, Student Financial Services, University of Pittsburgh, to Mr. 

Doyle, submitted by Mr. Terry ............................................................................ 54 

Letter, dated November 2, 2011, from Susan Rose, Treasurer, University 

of St. Thomas, to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ......... 56 

Letter, dated November 4, 2011, from Sharon Gardner, Office of Financial 

Services, Student Loan Collections, University of South Carolina, to Mr. 

Walden and Ms. Eshoo, submitted by Mr. Terry .............................................. 57 

Letter, dated November 2, 2011, from Vicky Degen, Otterbein University, 

to Mr. Walden and Ms. Eshoo, submitted by Mr. Terry ................................... 58 

Letter, dated November 2, 2011, from Belinda Higginbotham, Bursar, Western Kentucky University, to Mr. Walden and Ms. Eshoo, submitted by 

Mr. Terry .............................................................................................................. 59 

Page

V 

Letter, dated November 4, 2011, from Steve Bartlett, President and Chief 

Executive Officer, The Financial Services Roundtable, and John Dalton, 

President, The Housing Policy Council, to Mr. Walden and Ms. Eshoo, 

submitted by Mr. Terry ....................................................................................... 60 

Letter, dated November 3, 2011, from Dave McCurdy, President and Chief 

Executive Officer, American Gas Association, to Mr. Walden and Ms. Eshoo, 

submitted by Mr. Terry ....................................................................................... 61 

Letter, dated November 2, 2011, from Melanee Gallina, Educational Loan 

Specialist, Biola University, to Mr. Walden and Ms. Eshoo, submitted by 

Mr. Terry .............................................................................................................. 62 

Statement, dated November 4, 2011, of Consumer Bankers Association, submitted by Mr. Terry ............................................................................................. 63 

Letter, dated November 3, 2011, from Robert A. Bergman, Vice President, 

Public Affairs, UPS, to Mr. Upton and Mr. Waxman, submitted by Mr. 

Terry ...................................................................................................................... 67 

(1) 

H.R. 3035, THE MOBILE INFORMATIONAL 

CALL ACT OF 2011 

FRIDAY, NOVEMBER 4, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 9:01 a.m., in room 

2123, Rayburn House Office Building, Hon. Greg Walden (chairman of the subcommittee) presiding. 

Members present: Representatives Walden, Terry, Stearns, 

Shimkus, Blackburn, Bilbray, Bass, Gingrey, Scalise, Latta, Guthrie, Barton, Eshoo, Markey, Doyle, Barrow, Towns, and Waxman 

(ex officio). 

Staff present: Ray Baum, Senior Policy Advisor/Director of Coalitions; Nicholas Degani, FCC Detailee; Neil Fried, Chief Counsel, 

Communications and Technology; Kirby Howard, Legislative Clerk; 

Debbee Keller, Press Secretary; David Redl, Counsel, Communications and Technology; Alex Yergin, Legislative Clerk; Shawn 

Chang, Minority Counsel; Jeff Cohen, Minority Counsel; Roger 

Sherman, Minority Counsel; and Will Wallace, Minority Policy Analyst. 

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

Mr.WALDEN. I am going to call to order the Subcommittee on 

Communications and Technology, as we open this hearing on H.R. 

3035, the Mobile Informational Call Act of 2011. 

Today’s hearing is an opportunity for our subcommittee to explore an age-old problem with legislation: How do we ensure the 

laws on the books makes sense, given new technologies and the 

evolving marketplace? I welcome that opportunity, and I want to 

thank our vice chairman of the committee, Lee Terry, and I want 

to thank Mr. Towns for bringing us their bipartisan legislation, the 

Mobile Informational Call Act of 2011. 

The bill would update the Telephone Consumer Protection Act, 

which aimed to protect telephone customers from intrusive telephone marketing while balancing those protections against the 

needs of business and nonprofits to communicate and inform consumers. It did so, among other ways, by restricting the ability of 

telemarketers to make telephone solicitations and by prohibiting 

all use of automatic-dialing equipment and prerecorded voice messages for calls to wireless phones. 

2 

But it has been 20 years since Congress passed TCPA, and the 

world of telecommunications has changed. Back then, the only person with a cell phone was probably Gordon Gekko. Today, many 

Americans households have given up the landline and rely exclusively on wireless services. Back then, wireless customers paid 

higher per-minute rates to receive calls. Now, most customers have 

bucket of minutes so that receiving an additional call costs them 

nothing. Given these changes to the marketplace, now seems like 

a good time to revisit some of the rules the TCPA put in place. 

The thrust of the TCPA was to help protect consumers from unwanted telemarketing calls. The question now, however, is whether 

the TCPA is inadvertently preventing consumers from the convenience of getting other information that consumers do want and 

while they are on the go with their mobile phones. And if so, how 

can we address that? Does the TCPA prevent consumers from receiving informational calls from their banks, like fraud or low-balance alerts? Do the strictures of the TCPA and the FCC’s implementation of it make it too difficult for businesses to engage their 

customers and provide them with valuable services? What is the 

proper role for States in protecting the privacy of telephone subscribers? 

Reasonable people can disagree on the answers to all of these 

questions, and I imagine we will, but I think we can all agree that 

any legislation should not subject consumers to unwanted telephone solicitations. Surely we can figure out a way to allow consumers to receive useful informational calls without unleashing the 

telemarketers. I think that is exactly the needle that this legislation is aiming to thread. 

We have before us several experts that will help us explore these 

issues, and I hope we will learn something about the consumer 

benefits of mobile informational calls, something about the concerns of consumer advocates and our States’ attorney generals, and 

something about today’s wireless marketplace. 

I think this can be a very productive discussion about ways to 

improve our country’s laws for the benefit of all Americans, and I 

expect we will have some vigorous debate on how to do that. That 

is what hearings are all about. 

And I thank, again, our colleagues who have brought this legislation forward. 

And I would now yield to—well, we didn’t start the clock, so I 

don’t know how much time I have to yield. Looks like I have 89 

minutes and 43 seconds. Since there was no objection from my— 

yes. 

I would yield to my colleague from Tennessee, Ms. Blackburn, 

the remaining 1 minute I apparently had. 

[The prepared statement of Mr. Walden follows:] 

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OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs.BLACKBURN. Thank you, Mr. Chairman, and that is about all 

I need. 

I do want to let you all know that I appreciate so much your 

work and Mr. Terry’s work, the work of our staff, on the Mobile Informational Call Act. I am a cosponsor of this, and I think it does 

strike a reasonable balance that protects consumers while also allowing companies to provide beneficial information. 

An example of that, when FedEx, one of our Tennessee constituent companies, is able to provide automated informational 

calls to their customers using cell phones about future deliveries, 

they are able to increase their delivery rates on a first attempt by 

as much as 30 percent. That is a good thing because it reduces 

cost, helps the customers, and makes things more efficient. Under 

current law, FedEx is restricted in its ability to make automated 

calls about deliveries to customers, and we need a commonsense 

way to fix this. 

I appreciate your good work, and yield back. 

Mr.WALDEN. I thank the gentlelady. 

And all time has expired on our side. I turn now to my ranking 

member and friend, Ms. Eshoo from California, for 89–1/2 minutes. 

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

Ms.ESHOO. Thank you, Mr. Chairman. 

And good morning, everyone. Good morning to the witnesses, and 

thank you for being here. 

Today’s hearing revisits legislation enacted by this committee 20 

years ago. Much has changed, as the chairman said, since that 

time, particularly in the way Americans communicate with each 

other. An increasing number of U.S. consumers identify their wireless device as their primary means of communication, and many 

have eliminated the use of alandline phone altogether. 

And while I believe these changes in consumer behavior warrant 

our review of the Telephone Consumer Protection Act, I am concerned about the potential for misuse by modifying the act. In fact, 

my constituents have spoken very clearly. They don’t like this bill. 

I have heard from many, many constituents, and, to a person, they 

don’t like it. They have written to me since this legislation was introduced, and, as I said, they are opposed because they have a lot 

of concerns about it. 

We almost always have our wireless devices with us. And I agree 

that, with a consumer’s consent, these devices can serve as an ideal 

method for communicating data breaches, fraud alerts, drug recalls, and other important information in a timely manner. But 

‘‘consent’’ is a very important term. I am concerned that in redefining, quote, ‘‘prior express consent,’’ as this legislation does, consumers will unknowingly be opening themselves up to future 

robocalls anytime they provide a business with their mobile number. 

7 

Furthermore, unlike landline phones, there is still a cost associated with receiving an incoming call or text message on a wireless 

device. While it is true that many consumers subscribe to a monthly service plan, there is still a growing portion of the population, 

particularly many low-income Americans, who rely on prepaid service and pay on a per-minute or per-message basis. 

We see what happened with the banks and their debit card fees. 

And I think that there are going to be a lot of consumers in the 

country—if this bill were adopted in its present form, I think the 

Congress will hear from an awful lot of people on this. 

Why should a consumer be subjected to an unsolicited text message at a cost of 20 cents per message? Many consumers may wish 

to opt out of receiving these informational text messages, preferring instead to receive a phone call, an email, or other form of communication. So these options should be available to consumers, yet 

they are not considered by this legislation. 

So I think that there are some real questions that need to be answered about the legislation under consideration. I thank each one 

of the witnesses for being here with us today, and I look forward 

to their testimony. 

And, Mr. Chairman, I would like to ask unanimous consent to 

submit the following letters of opposition for the record. 

[The letters follow:] 

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Ms.ESHOO. And I would like to yield the remaining time that I 

have to Mr. Doyle for the balance of the time. 

Mr.WALDEN. Without objection. 

Ms.ESHOO. Thank you. 

OPENING STATEMENT OF HON. MICHAEL F. DOYLE, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr.DOYLE. I want to thank our ranking member and my good 

friend, Anna Eshoo, for giving me some time to speak. 

I want to thank our distinguished panel of witnesses for joining 

us today. 

Mr. Chairman, only 4 years ago, I remember the Energy and 

Commerce Committee’s consideration of my bill to make the Do 

Not Call List permanent. That legislation, which was signed into 

law in 2008, allows people to opt out of receiving unwanted telemarketing calls once and for all. The bill before the subcommittee 

today presents a similar opportunity for us to weigh the potential 

benefits of a business’ ability to contact its customers with the importance of consumer protections. 

As a growing number of people cut the cord in favor of wireless 

phone and text services, it is commendable that the subcommittee 

seeks to explore the effects of these changes on the conduct of commerce. However, my initial read of this legislation causes me to 

worry that its possible harmful impact on consumer welfare could 

overshadow its benevolent goals. I am concerned about the bill’s potential consequences for individual privacy as well as its implication on consumers’ pocketbooks. 

So I look forward to learning more from our witnesses about the 

legislation’s impacts on consumers, in addition to businesses. I 

want to thank you again, to all the members of our panel, for taking the time to help explain these complex issues to the subcommittee. 

Mr. Chairman, I appreciate your patience, and I yield back. 

Mr.WALDEN. The gentleman yields back his time. 

I now recognize the vice chair of the committee, Mr. Terry. 

OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA 

Mr.TERRY. Thank you, Mr. Walden, for holding this hearing 

today. 

And this is a continuation of this committee’s effort to look at 

older laws and see how they need to be changed to meet modern 

needs and technologies. 

Now, I will admit that, after reading some articles that have 

been written about this, that maybe there is a misperception, but 

also the misperception can be reality, in the sense that the essence 

of this bill is to ride the fine line between unwanted and wanted 

communications from people that choose to have the communication occur. 

So that is the fine line that we are trying to ride here. I make 

no pretense here that we have perfect language in finding that line. 

And that is why I am pleased that all of our panelists are here to 

help us refine the language today. 

15 

So, under current law, if a consumer like me gives my cell phone 

number as my contact to an organization or business—so, let’s say, 

schools—already current in law is I have consented because I physically gave them that phone number. I wrote it down on the line 

that says, ‘‘How do we contact you?’’ OK? Under the FCC, that is 

permission. 

The issue is whether the phone number is going to be physically 

dialed by somebody pushing 10 buttons or whether it is an automated, computer-based call. And we think that needs to be modernized. That is where the line should be drawn between weeding 

out or preventing—and this bill’s intent is to never allow an unsolicited, unwanted call. That is the goal here. 

Now, you look at society today, and it is ubiquitous in our ability 

to communicate with each other. I give my school my cell phone 

number. I get texts when there is an emergency or some issue that 

they need to communicate with—last year, it was a certain virus 

that was going around the schools. We have snow days in Nebraska. I want to know about that. The cell phone is my only way 

to get that information. 

Another example with some of our financial institutions is their 

overdraft protection. You can sign up that they will notify you 

when you get to a certain point in your checking, let’s say $20. You 

say, I want to be notified if I get down to $20 so I don’t write a 

bad check. That is an automated call that comes out and says, your 

account is at $20. Under today’s law, that is not lawful, but yet it 

is wanted. 

That is our goal here. We can go through dozens of examples 

where people give their phone number as a contact, that want the 

information, but it is unlawful. That is the fine line that we are 

riding here today. 

And I really look forward to Attorney General Zoeller. You are 

particularly vociferous. I appreciate that. We want your suggestions of how to define that line. Because I think all of us would say, 

if you signed up, you want that information, you should get it lawfully. 

So, with that, what I would like to do is yield my remaining 

minute, 15 to the chairman emeritus, Mr. Barton. 

Mr.BARTON. I want to thank the sponsor of the bill, Mr. Terry, 

for yielding some time to me even though he knows that I am in 

opposition to his bill. That shows great statesmanship and tolerance on your part, and I appreciate it. 

Mr.TERRY. Take it back. 

Mr.WALDEN. The gentleman’s time is expired. 

Mr.BARTON. Yes, that is way the game is played. 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

I hate to be the Republican that spoils the garden party, but the 

current system is in place for a reason, and that reason is that people do protect and want to protect their privacy. 

I have a cell phone also, and the only people that have my cell 

phone number are other Members of Congress, my family, my very 

close friends, and my senior staff. I know that if I get a phone call 

16 

on my cell phone, it is from somebody that I know and that they 

need or want to talk to me. 

I have three landline phones in Texas. I know that if that phone 

rings, the odds are better than even that it is a commercial call 

that I don’t really care to get. So about half the time I don’t even 

answer it, unless I am expecting a call from somebody. 

I know what Mr. Terry and Mr. Towns are attempting to do, and 

I think it is noble, but I don’t think you can draw that fine line, 

as Mr. Terry said. Once we open the door to automated dialing for 

cell phones for very reasonable reasons such as Mr. Terry suggested, I don’t see how you prevent it being used for other, less reasonable reasons. 

So, for that reason, Mr. Chairman and Mr. Vice Chairman and 

Mr. Towns, I do respectfully oppose the bill. But I am glad that we 

are having a hearing to air the issues. 

With that, I yield back. 

[The prepared statement of Mr. Barton follows:] 

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Mr.WALDEN. The gentleman yields back the balance of his time. 

I recognize the ranking member of the full committee, Mr. Waxman. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr.WAXMAN. Thank you, Mr. Chairman. I appreciate your holding this hearing on the Mobile Informational Call Act of 2011. You 

and Mrs. Eshoo have put together another balanced panel, and it 

is appreciated. 

The Telephone Consumer Protection Act, TCPA, was signed into 

law by President Bush in 1991. In the 20 years since its enactment, 

there have been dramatic changes in phone technology. Most notably, in 1991, less than 8 million Americans subscribed to mobile 

phone service. Today, there are well over 300 million wireless subscribers. And every day, more Americans are cutting the cord and 

relying on their mobile phones exclusively. 

Congress enacted the TCPA based on the bipartisan premise that 

residential telephone subscribers consider automated or 

prerecorded telephone calls, regardless of the content or the 

initiator of the message, to be a nuisance and an invasion of privacy. Although mobile phone usage has skyrocketed, I expected 

most Americans still have a high degree of concern about unwanted 

telephone calls, regardless of where they receive them. Indeed, congressional actions to protect Americans from unwanted phone solicitation have proven wildly popular. 

Fundamentally, we need to look at this issue from the perspective of the wireless consumer. By amending the law, as H.R. 3035 

proposes, are we modifying consumer control over wireless phones? 

Are we changing expectations regarding privacy? Are we increasing 

costs? 

Although some consumers have unlimited texting and calling 

plans, millions do not. Will consumers have a clear ability to avoid 

unwanted calls and texts on their wireless phones when such communications increase their costs? 

Will consumers understand that, when they turn over their wireless phone number to the auto dealership, they are agreeing to receive future autodialed and prerecorded calls and texts about recalls, warranty updates, scheduled oil changes, or even from thirdparty bill collectors? 

We also need to understand whether existing law already allows 

consumers to receive calls on their wireless phones from businesses 

and others. Several experts have suggested that this is permissible 

under existing law. For example, if a school wants to use an automated dialer or prerecorded message to call parents’ cell phones or 

send them text messages about a snow day, this is permissible 

under existing law with a parent’s prior express consent. Similarly, 

autodialed and prerecorded updates from power companies, airlines, banks, and cable companies are all allowed with the prior express consent of their customers. 

Finally, H.R. 3035 appears to preempt a variety of existing State 

laws in a significant way. The bill would amend the TCPA to preempt all State laws about faxed advertisements, autodialers, and 

20 

artificial or prerecorded voice messages. I know the preemption of 

State laws can sometimes be good for businesses, but it is not clear 

to me how preemption would help consumers or deter telemarketing abuses. 

I look forward to our hearing, and I wish to yield the balance of 

my time to Mr. Towns. 

[The prepared statement of Mr. Waxman follows:] 

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OPENING STATEMENT OF HON. EDOLPHUS TOWNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr.TOWNS. Thank you very much. 

You know, I am proud to stand with President Obama, who included this in his jobs proposal because of the opportunity it offers 

to assist with deficit reduction, something that we all are concerned about. 

I look forward to learning from the witnesses how this legislation 

can impact consumers’ daily lives in a positive way. Again, I thank 

the subcommittee and my colleagues for holding this hearing. As 

we move forward in the legislative process, I will work with my colleagues to shape the bill to keep the important benefits the bill 

would provide to consumers while at the same time ensuring that 

it has strong consumer protection to prevent and punish abuse. 

Critics of the bill have said that the bill will open the door to nuisance and abusive calls that impose unacceptable costs to people’s 

cell phone bills. While I don’t think the incentives are there for this 

to happen to consumers, I look forward to learning and hearing 

from the witnesses to see in terms of how we can move forward and 

hoping that, as we move forward, some of the things that have 

been said, that we will be able to clear them up. 

And, on that note, I want to thank the ranking member of the 

full committee for yielding to me. 

And, on that note, I don’t have anything to yield back, but I will 

yield back. 

Mr.TERRY [presiding]. Thank you, Mr. Towns. 

And I ask unanimous consent to submit 29 letters in support, the 

majority of which are from universities so they can contact their 

students. So I will submit those for the record, without objection. 

[The letters follow:] 

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Mr.TERRY. So, at this time, we would like to hear from our witnesses. We will go from my left to right, with Ms. Schwartz. 

You may begin. And if I could say, limit your comments to 5 minutes. And I will lightly tap at 5 minutes. So, it is not being rude, 

just kind of notice. 

Go ahead. 

STATEMENTS OF FAITH SCHWARTZ, EXECUTIVE DIRECTOR, 

HOPE NOW ALLIANCE; STEPHEN A. ALTERMAN, PRESIDENT, 

CARGO AIRLINE ASSOCIATION; DELICIA REYNOLDS HAND, 

LEGISLATIVE DIRECTOR, NATIONAL ASSOCIATION OF CONSUMER ADVOCATES; GREGORY F. ZOELLER, ATTORNEY GENERAL, STATE OF INDIANA; MICHAEL ALTSCHUL, SENIOR 

VICE PRESIDENT AND GENERAL COUNSEL, CTIA 

STATEMENT OF FAITH SCHWARTZ 

Ms.SCHWARTZ. Chairman Walden, Ranking Member Eshoo, Vice 

Chair Terry, and members of the subcommittee, thank you for the 

opportunity to testify today. 

My name is Faith Schwartz, and I am the executive director of 

the Hope Now Alliance, a nonprofit foreclosure-prevention effort. 

And I am the cofounder of Hope LoanPort, which is a nonprofit 

Web-based tool which is a public utility for borrowers and counselors to submit loan-workout packages to loan servicers for free. 

I have served in a leadership capacity at Hope Now since 2007, 

during which time I worked closely with members and partners of 

the Alliance, including mortgage servicers, investors, nonprofit 

housing counseling partners, government agencies, and regulators 

to help homeowners avoid foreclosure. Before my time with Hope 

Now, I served in various capacities in the housing finance industry 

for 28 years. 

The comments I make today are my own and reflect my experience in the mortgage business and, in particular, working with 

servicers and counselors attempting to help at-risk homeowners. 

These comments do not necessarily reflect all the views of Hope 

Now. 

I am here today to speak to you specifically about our ongoing 

foreclosure-prevention efforts and the difficulties of reaching borrowers in financial distress. 

The financial services industry and its nonprofit and government 

partners remain committed to using all the tools that are available 

to assist homeowners. Since 2007, the mortgage industry has completed an estimated 5 million permanent loan modifications—and 

we know this because we measure it every month from that date— 

based on 37 million loans. In total, the industry has provided 14 

million solutions for homeowners that include loan mods, shortterm solutions such as repayment plans and forbearance, unemployment options such as short sales and deed in lieu, that provide 

alternatives to foreclosure. 

Hope Now has held 117 face-to-face events across the country 

since 2008. In fact, today we are in Houston, Texas, holding such 

an event with the United States Treasury, Making Home Affordable, and our nonprofit partner, NeighborWorks America. Without 

question, the outreach events have improved the experience of 

69 

many customers trying to resolve their mortgage difficulties 

through face-to-face meeting with their loan servicer or counseling 

through a nonprofit agency. But our exit surveys continue to show 

that at least 30 percent of those attending had never had contact 

with their servicer before the meeting, despite multiple attempts 

from the servicer. 

The single greatest obstacle to keeping a delinquent borrower in 

their home is the inability to contact them and make aware the 

workout options that are available. The breadth and the complexity 

of options, both government programs and proprietary solutions— 

a full list of which I have included in my written testimony—makes 

it imperative that homeowners be in contact with their servicers. 

But we know from experience that often borrowers in financial distress do not open mail, they cancel their landline service, and increasingly rely on wireless phones as their primary or exclusive 

communications device. 

As we see these numbers ever increasing, with cell phones and 

text messaging becoming the primary means of communication, it 

has become clear that the current Telephone Consumer Protection 

Act, TCPA, is hindering effective communications between homeowners and loan servicers. H.R. 3035, the Mobile Informational 

Call Act of 2011, would modernize TCPA by eliminating restrictions on informational calls to mobile phones. 

For 20 years, the TCPA has permitted automated informational 

calls to be delivered to consumers’ wireline phone numbers but not 

their wireless numbers. H.R. 3035 would allow automated commercial calls to mobile phone numbers as long as they do not include 

marketing messages. 

Currently, our primary means of contact ourlandlines and mailing invitations to foreclosure-prevention outreach events. It is difficult, if not impossible, to efficiently and effectively reach approximately 40 percent of consumers who rely on wireless phones as 

their primary communication vehicle. 

Consumers reap significant benefits when financial institutions 

are able to reach them quickly and efficiently. Using the 

autodialers or a prerecorded message, such as the bill allows, is not 

only a quicker, more cost-effective way, it would also free up lossmitigation specialists to spend time working with individual borrowers rather than making repetitive manual calls. 

While this bill is not a panacea and it certainly will not end 

every foreclosure, it will, without a doubt, increase our contact rate. 

And the more people we contact, the more solutions we offer. The 

equation is very simple: If you increase the amount of customers 

you reach, you increase the number of workouts and you decrease 

the number of foreclosures. 

In conclusion, Mr. Chairman, in the area of foreclosure prevention, the Mobile Informational Call Act is a positive for consumers 

and for those working to keep them in their homes. Thank you. 

[The prepared statement of Ms. Schwartz follows:] 

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Mr.TERRY. Thank you, Ms. Schwartz. 

Mr. Alterman? 

STATEMENT OF STEPHEN A. ALTERMAN 

Mr.ALTERMAN. Thank you very much. 

Good morning, Chairman Walden, Ranking Member Eshoo, and 

members of the subcommittee. My is Steve Alterman, and I am 

president of the Cargo Airline Association. We appreciate the opportunity to testify today in support of the provisions of H.R. 3035, 

the Mobile Informational Call Act of 2011, and we request that our 

written testimony be made part of the record. 

The Cargo Airline Association is the nationwide trade organization representing the interests of the United States all-cargo air 

transportation industry. That is companies such as FedEx, UPS, 

DHL, and all those that deliver packages. Members of our association are in the business of picking up, transporting, and delivering 

packages throughout the world to meet our customers’ needs. 

At times, our members may need to notify these package recipients of scheduled deliveries or failed attempts to deliver specific 

packages. Typically, such notifications involve shipments where a 

signature is required, notifications that shipments are being held 

for pickup at specified locations, and COD shipments. These calls 

merely provide customer service and do not contain any solicitation 

or product marketing. 

In today’s world, with more and more individuals relying solely 

on mobile phones, it is becoming even more important to permit informational calls to mobile devices. Indeed, anecdotal evidence in 

our industry indicates that upwards of 50 percent of all contact 

numbers provided are, in fact, cell phone numbers. Faced with 

these facts, the Association and its member companies have a significant interest in the passage of H.R. 3035. 

The Association supports the intent of the TCPA in that it aims 

to restrict unsolicited telemarketing calls to residential and cellular 

telephones. At the same time, we agree that the TCPA properly 

grants to the FCC the regulatory authority to enact limited exemptions from this general ban. It has done so to permit non-telemarketing informational calls to landline equipment. And the time 

has now come to expand that to cell phones. 

It is also important to point out that, in the case of customer 

service calls made by the Cargo Airline Association members, 

phone numbers are not randomly generated or sequentially generated but are given to the carriers by the package senders, who 

receive them from the purchasers, presumably so they or the intended recipient can be contacted in the event that they need to be 

called with information about the package delivery. 

By giving the shipper a contact number, the recipient should be 

found to have authorized calls that to number, whether by the 

shipper or any other member of the supply chain. For example, if 

a customer orders an item online and provides a mobile number as 

the contact number, the consumer obviously consents to the retail 

merchant contacting with regard to their order, as well as to other 

parties that facilitate the fulfillment and delivery of that order. 

This information exchange is purely transactional, and, from the 

81 

carrier perspective, the consent significantly boosts the ability to 

deliver packages efficiently and effectively. 

Finally, we believe that it is important that any legislation recognize, to the extent possible, the advancing technology of the modern 

world. Therefore, to avoid any issues or questions in the future, we 

respectfully request that the proposed legislation be amended to 

specifically provide that text messages, in addition to phone calls, 

be included in the scope of the calls allowed to be made to mobile 

devices under the terms of H.R. 3035. 

In view of all these circumstances, the Association urges the enactment of H.R. 3035 to permit purely informational calls, including text messages, to mobile phones by automated-recording devices. Such action will retain the intended ban on so-called telemarketing calls while authorizing informational calls that are 

clearly in the public interest. 

Thank you very much. I would be happy to answer any questions. 

[The prepared statement of Mr. Alterman follows:] 

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Mr.TERRY. Thank you, Mr. Alterman. 

And Ms. Hand? Thank you. 

STATEMENT OF DELICIA REYNOLDS HAND 

Ms.HAND. Thank you. 

Chairman Walden, Ranking Member Eshoo, Vice Chair Terry, 

and members of the subcommittee, thank you for inviting me to 

testify today on the subject of H.R. 3035, the Mobile Informational 

Call Act of 2011. 

I am the legislative director of the National Association of Consumer Advocates. NACA is a nonprofit association of consumer advocates and attorney members who represent hundreds of thousands of consumers victimized by fraudulent, abusive, and predatory business practices. 

My testimony today expresses the sentiments of the 12 national 

consumer protection, civil rights, and privacy organizations who oppose the bill and recently submitted a letter opposing H.R. 3035 to 

this committee. This letter is included as an attachment to my 

written testimony. 

H.R. 3035 will allow entities to use the automatic telephone dialing system, unaffectionately known as ‘‘robocalls,’’ and automated 

messages on consumer cell phones under the guise of consent, even 

though the consumer could never have envisioned such use. Under 

this new bill, any transaction or relationship will constitute consent 

to repeatedly call the consumer’s cell phone in perpetuity, even if 

the consumer does not give out her cell phone number and regardless of whether the consumer asks that she not be called. 

Imagine if, after you leave today’s hearing, you stop by a local 

pharmacy on your way home. While at the counter making your 

payment, you absentmindedly hand over your phone number. This 

transaction alone would now suffice as consent to receive a robocall 

on your cell phone under H.R. 3035. 

You have forgotten about this transaction, and a few days later, 

while you are out at dinner with your family, you receive a call on 

your cell phone with a robotic voice at the other end thanking you 

for your recent purchase and verifying that the prescription you 

picked up is the one you actually wanted. You hang up the phone, 

but 2 minutes later, from a different number, the same robotic 

voice is on the line. You hang up again. Two minutes later, yet 

from a different number, the same voice is on the line. Two minutes later, again the same thing. You get the idea. 

This is the reality of thousands of Americans whose cell phone 

numbers have been entered into the smart-dialer technology that 

knows when you are likely to answer the phone due to estimating 

when you are most available. 

Currently, the largest debt collectors make more than a million 

calls in 1 day to consumer cell phones. If H.R. 3035 becomes law 

in its present form, harassing robocalls on consumer cell phones 

will become the new norm. 

Today, we respectfully urge committee members to be wary of 

the bill proponents’ motives for the following reasons. 

First, debt-collection agencies, creditors, airlines, utilities, and 

other businesses may already robodial any telephone number, inVerDate Aug 31 2005 13:16 Aug 24, 2012 Jkt 037690 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 F:\112-10~4\112-10~1 WAYNE
88 

cluding cellular phones, if the number was provided to them by the 

consumer. 

Second, robocalling is also permitted in case of emergencies such 

as hurricanes and other natural disasters. For example, recently, 

in the wake of Hurricane Irene, technologies to notify residents of 

emergency preparedness measures through mass-notification systems were used by municipalities up and down the east coast. 

Third, the proponents want to completely gut the important privacy and consumer protections found in the Telephone Consumer 

Protection Act. They want to strip consumers of any choice as to 

what phone numbers companies with which they do business may 

contact them. They want to remove all prohibitions against using 

robocalls by redefining automatic telephone dialing systems to include only antiquated technology that does not exist in the real 

world today. 

In fact, under the definition provided in H.R. 3035, telemarketers, the original target of the Telephone Consumer Protection Act, would now able to robocall consumer cell phones because 

most telemarketers do not use random or sequential dialers; they 

predictively dial cell phones. They want to prevent consumers from 

enforcing the demands that unwanted robocalls stop and to prevent 

State laws and attorneys general from further restricting and enforcing laws regarding these robotic calls. 

In conclusion, Mr. Chairman and Ranking Member, I urge this 

subcommittee not to open Pandora’s box of the many unforeseen 

harmful consequences that will result if H.R. 3035 becomes law in 

its present form. 

Thank you. 

[The prepared statement of Ms. Hand follows:] 

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Mr.TERRY. Attorney General Zoeller? 

STATEMENT OF GREGORY F. ZOELLER 

Mr.ZOELLER. I thank you, Mr. Chairman and members. 

I appreciate Congressman Terry pointing me out as having spoken out on this in the newspaper. It recognizes that it is very important to the State of Indiana and the people I represent. 

I think particularly our focus of concern on H.R. 3035 deals with 

the proposed areas that deal with preemption. And ‘‘preemption’’ is 

one of those words that gets the attention of attorneys general. 

Just in the last day, I have received contacts from the attorney 

general’s office in Connecticut, Iowa, Illinois, Kentucky, North 

Carolina, North Dakota, Nevada, Oregon, and Tennessee, immediately upon learning that I was coming here. So I recommend to 

all the Members to please contact your attorneys general in your 

home States and kind of listen to the boots on the ground that 

have to represent the consumers of your State. 

Over the last 20 years, Indiana has had a very unique experience 

under our own sense of privacy among Hoosiers. We had an 

autodialer statute that prevented the use of the technology since 

1988, well before it was seen as a problem. We had a do-not-call 

statute in 2001 that does not allow the exemption of prior business 

relationships. So, unlike the experience of the Congressman from 

Texas who says he won’t answer the home phone, in Indiana you 

can still answer your phone because it will not be a telemarketer. 

We had a do-not-fax statute in 2006. In this past legislative session, we allowed for cell phones to be added specifically to our donot-call list. We now have over 2 million lines registered on our donot-call statute. This past session, after the General Assembly allowed the cell phones, we had 189,000 immediately, within a very 

short period, sign up for the Do Not Call My Cell Phone. 

So, the autodialer law is particularly one where we have the biggest problem. In Indiana, if you get a robocall, it is a scam. And 

everybody knows it is a scam because it is prohibited. It is the one 

State where, if you ask the Members of Congress, your colleagues 

from Indiana, where they do not use robocalling even for the teletownhalls. 

So it recognizes that in Indiana we have a certain appreciation 

for privacy that may not be common in all 50 States. They are subject to the Federal do-not-call statute that allows for the exemption 

of the prior business relationship, which I think has desensitized 

a lot of people, or as your colleague from Texas just simply doesn’t 

answer the phone. 

So, due to the success of our laws, the people of Indiana have 

been very sensitive to this. And, quite frankly, when I have toured 

the State talking about my trip out here, I heard very specifically 

some of their passion on this issue. 

Another point that I would make is that, in 2010, recognizing 

that there are questions about political free speech, I asked the 

three major parties in Indiana to a ‘‘Treaty of 2010’’ where they all 

agree not to use or encourage the use of telemarketing. And I can 

report that that treaty was not broken during the 2010 election 

cycle. 

105 

If you look at the history of the Federal statute, starting in 1934, 

it was really meant to focus on the services and facilities and not 

really the use in the States. So one of the things that we are asking—and it is not that big an ask—having recently had a Federal 

court preempt the use of our own State statutes prohibiting 

autodialing, I would like to ask the committee to take a hard look 

at the use of the word ‘‘intrastate,’’ which was exactly what the 

court found allowed for the preemption of things that were interstate. 

So, again, having recognized the problems of this case that we 

submitted in our written testimony, I would ask your staff to take 

a good, hard look at that case where, 2 weeks ago, Indiana’s 

robocall statute has now been preempted by the very act of Congress that I see again here in front of us. 

So I would grant back the 5 seconds that I have left. 

[The prepared statement of Mr. Zoeller follows:] 

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Mr.TERRY. That is appreciated. 

Mr. Altschul? 

STATEMENT OF MICHAEL ALTSCHUL 

Mr.ALTSCHUL. Good morning. And thank you, Mr. Terry, Ranking Member Eshoo, and members of the subcommittee. On behalf 

of CTIA, I thank you for the opportunity to participate in this 

morning’s hearing. 

CTIA was here and proud to support the original TCPA 20 years 

ago, and we welcome the introduction of this bill, H.R. 3035, as we 

believe it helps illustrate how profoundly the wireless industry has 

changed over the past 20 years. 

A number of you in your statements have talked about the phenomenal growth and acceptance of wireless. I thought for showand-tell I would bring the state-of-the-art phone from 1992. And 1 

month after the TCPA was passed into law, Motorola’s MicroTac 

Lite was introduced to the public in January. This claimed to be 

the first phone that you could fit into your pocket—it required 

quite a pocket—and cost as much as $2,500. And, by the way, service prices in 1992, on a permanent basis, were 10 times higher 

than they are today. 

So, obviously, over the past 20 years, there has been phenomenal 

change and growth in the industry and Americans’ acceptance of 

wireless. We have gone, as you know, from 7 million to over 300 

million subscribers. And we are proud as an industry that America 

now leads the world in delivering next-generation wireless services 

at a lower price per minute of use than in any other country in the 

developed world. 

For the purposes of today’s hearing, it is perhaps this point—how 

wireless has been adopted as the primary source of communications for millions of Americans—that may justify a fresh look at 

the TCPA restrictions on the delivery of informational calls to mobile devices and the challenge we all face in crafting a law that will 

permit wanted commercial communications while preventing unwanted communications. 

Others have noted how more than 25 percent of Americans have 

cut the cord. In some locations, the numbers are substantially higher, as high as 40 percent. Obviously, this shift creates challenges 

for companies and government agencies that want to provide informational calls to individuals who are not reachable in any other 

way and may value timely notifications of the kinds of alerts and 

information that others on the panel have described. 

I want to focus the remainder of my time on three issues of 

unique importance to the wireless industry. 

First—and it is a personal peeve of mine—along with customers, 

wireless carriers are victimized by violations of the TCPA by unscrupulous boiler-room operators seeking to sell extended car warranties and the like. In cases where they can locate and identify 

the source of these messages, wireless carriers have vigorously 

brought suit to shut down these scams. And we are proud that we 

have cooperated with State attorney generals and the Federal 

Trade Commission in investigating and prosecuting TCPA cases. 

Unfortunately, while we do all we can to identify and shut down 

TCPA violations, the FCC continues to catalog TCPA reports as 

123 

wireless complaints. We believe it is unfair for the Commission to 

count these complaints, which originate outside the wireless network and have nothing to do with wireless carriers’ conduct and 

behavior, as wireless complaints in their quarterly reports. And, for 

this reason, we urge the subcommittee to compel the FCC to 

disaggregate TCPA data from reporting of wireless complaints. 

Second, the FCC has an open proceeding in which it has sought 

comment on proposals to harmonize its TCPA rules with the FTC’s 

telemarketing sales rules. In this proceeding, we are concerned 

that requiring wireless carriers to obtain their customers’ express 

written consent to receive autodialed or prerecorded non-marketing 

calls could overturn the Commission’s precedent permitting wireless carriers to send free-to-the-end-user calls and messages to 

their customers without additional consent. 

As you may know, the industry has recently committed to deliver 

usage notifications to wireless users when they near plan thresholds to prevent bill shock and overage or international roaming 

charges, and we don’t want anything to interfere with our ability 

to do that. 

Third and finally, there have been a series of class-action lawsuits filed against Twitter; Facebook; banks, including Barclays 

and American Express, that threaten the industry’s efforts to protect privacy and comply with the Mobile Marketing Association’s 

consumer best practices. These suits allege that the best practice 

of sending a text message to confirm receipt and acceptance of a 

customer’s request to quit or stop violates the TCPA. It is unreasonable, and it is another matter we would like this committee to 

look into. 

So thank you for your consideration of these suggestions. 

[The prepared statement of Mr. Altschul follows:] 

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Mr.TERRY. Thank you for your testimony, and all of you for your 

testimony. 

At this time, we are going to begin our questions. 

Attorney General Zoeller, I am going to start with you. And this 

is friendly. But I am concerned about State preemption, too. So 

what I would like to ask you is if you would help us work with language that would make States feel comfortable that we are not preempting your individual State laws. 

I want to point out the flip side and why we need to work together on this. One is, as I understand, one of the laws in Indiana 

specifically allows autodialed calls from schools. Well, the FCC, if 

that school is texting about a snow day, whether it is a university 

or just a public school, may be in violation with an autodialer, subject to, as Mr. Altschul said, a $500 fine per student. So we have 

to work that—I wanted to point that out. 

Would you be able to help us draft some language that would 

protect Indiana and States’ laws, at the same time making sure 

that when they comply with the State law they are not in violation 

of Federal rules and regulations? 

Mr.ZOELLER. Absolutely. No, we have no concerns about how the 

rest of the country and the Federal Government regulates. It is our 

experience, though—and I think if it sounds like I have reservations about the promises—that we were here representing the 

State of Indiana when the TCPA was enacted, and there were assurances that there would be no preemption. And, 2 weeks ago, a 

Federal court struck down an Indiana statute on preemption 

grounds. 

So we would be very willing to work with the committee—— 

Mr.TERRY. Good. 

Mr.ZOELLER {continuing]. But recognize that we worked last 

time, and the same people who supported this bill have been attacking our statutes for the last decade until they finally preempted our statute. 

Mr.TERRY. OK. 

Ms. Hand, you raise some concerns, and, frankly, just like Ranking Member Eshoo’s constituent did and some reporters as well, 

that this is opening up the Pandora’s box. And, in your comments, 

you said that our intent was to cause that. And I just want to place 

on the record, we worked with leg staff specifically saying, let’s 

draft language that prohibits the unsolicited marketing, teleservices, random calls like you were talking about. We worked hard to 

make sure that wasn’t true. So I got to tell you, I took a little offense when you said that was my intent in drafting this. It is completely the opposite. 

So you have a concern, Ms. Eshoo has a concern, I have heard 

concerns from people back home when they read about this bill 

about getting the unwanted telemarketing. Will you work with me 

to develop language so that we can have language that is clear that 

bans or continues to ban—I still think our language still bans those 

type of calls. Would you work with us on that? 

Ms.HAND. Certainly. We want to be a part of the conversation, 

and we want to work with you to ensure that consumers continue 

to be protected. So we appreciate you extending that. 

130 

Mr.TERRY. OK. We want to make sure that our intent here is 

that people, when they want information, are able to receive that 

without the sender being subject to lawsuits and fines, and continue to ban unwanted calls. So I appreciate your willingness to 

work with us on it. 

At this time, I am going to yield back my time and recognize the 

ranking member, Anna Eshoo. 

Ms.ESHOO. Thank you, Mr. Chairman. 

And thank you again to the panel. I think the collective testimony has been instructive, and I thank you for it. 

To Attorney General Zoeller, it is an honor to have an AG here. 

The TCPA sets a floor, and not a ceiling, allowing States to experiment and give consumers more protections, should they wish to do 

so. And I think that you have spoken very clearly about the wishes 

of your constituents and the actions that your State has taken, and 

I salute you for that. 

Now, by contrast, this bill would take away the States’ ability to 

provide additional protections to your consumers by prohibiting any 

State laws addressing the subject matters regulated in the bill. Is 

that your view of it? 

Mr.ZOELLER. Well, the particular concern is the use of the word 

‘‘intrastate,’’ which is exactly how in the lawsuit—— 

Ms.ESHOO. And you said that in your testimony. Uh-huh. 

Mr.ZOELLER. So, the fact that it says ‘‘intrastate’’ has been read 

by the Federal courts to allow the argument that we are preempted 

on interstate. So, really, I heard the floor and not the ceiling, but 

when we are preempted, we are preempted. So it was the floor and 

the ceiling. 

Ms.ESHOO. Thank you. 

And to Ms. Hand, as currently written, I understand that this 

bill would narrow the TCPA’s definition of an automatic telephone 

dialing system. And based on your reading of the bill, wouldn’t this 

create a loophole that enables live telemarketing calls? 

Ms.HAND. Yes, this is correct. As currently defined in the bill, 

the bill proposes to define automatic telephone dialing systems as 

machines that randomly or sequentially generate telephone numbers. And so what this would do, in effect, is that the industry 

standard for dialers would not be included. It would exclude what 

is known as predictive dialers, which are predominantly used by 

telemarketers and debt collectors. 

So it would, in effect, reverse the original intent of the Cell 

Phone Consumer Protection Act, so it is very concerning. 

Ms.ESHOO. And I think that this is a closely held value that 

came out of the TCPA legislation. So I think that is where an awful 

lot of upset is coming from. 

Ms. Schwartz, thank you for your testimony. As I noted in my 

opening statement, prior express consent, those are really important words. They have an important meaning to consumers. If you 

have the express consent to reach a customer’s mobile phone, what 

prevents you from delivering them these important informational 

messages today under existing law? 

Ms.SCHWARTZ. I think you are right about the prior—pardon my 

voice; I woke up without one this morning. 

131 

Nothing prevents you when you have prior consent. Sometimes 

there are new accounts and then people have changed behavior and 

they have closed down their landlines. 

So my whole focus is reaching people, sharing information that 

is pertinent to them keeping their homes, and engaging with them 

when they have been reluctant to do so or want to do so but have 

not been effective. So, on both sides—— 

Ms.ESHOO. But what prevents you from doing that today under 

existing law, what you are describing, what you want to do with, 

you know, the work of your organization? 

Ms.SCHWARTZ. Well, we go to landlines and we go to mail to get 

to borrowers, but we don’t go to cell phones because we don’t have 

that prior consent or have sought to violate it. 

Ms.ESHOO. I wanted to ask a question of the chairman. Is the Association of Credit and Collection Professionals supporting the bill? 

Does anyone know? 

Mr.TERRY. I didn’t look at the 29 letters there. 

Ms.ESHOO. OK. 

To Mr. Altschul from the Wireless Association, thank you. And 

I think that it is wonderful that you brought the old set and talked 

about the changes that have taken place. It is nothing short of 

stunning, the changes that have taken place in a short period of 

time. 

You noted that prices, on a permanent basis, were 10 times higher in 1991 than they are today. But text messaging is one feature 

that didn’t exist 20 years ago. Would you agree that it is fairly 

common for consumers to pay on a per-message basis? And what 

is the average cost of receiving such a message today? 

Mr.ALTSCHUL. I don’t know that information. I would be happy 

to provide it. I know that there was a hearing about 2 years and 

a couple of our member carriers did provide information to Congress. 

The overwhelming majority, if I recall their testimony correctly, 

the overwhelming majority of customers do have some kind of 

bucket of texts. But there still are customers, like my mother, who 

don’t and would have an a-la-carte charge for receiving a text message. 

Ms.ESHOO. Thank you, Mr. Chairman. I yield back. 

Mr.TERRY. Thank you. 

Mr. Stearns, you are recognized. 

Mr.STEARNS. Thank you, Mr. Chairman. 

I was the author of the Do Not Call List when I was chairman 

of the Commerce and Consumer Protection—at that point, it was 

Trade. And then, once we passed that, then we had to, the next 

session of Congress, pass another law to make sure to extend it. 

And I have found that it is the most popular bill that I have ever 

passed, and it is perhaps one of the most popular bills that has 

ever passed Congress because everybody was just lauding it. 

So I think, when we move into this, we have to understand some 

of the nuances between the land-based lines and the cell phone. So 

let me just go across the panel and ask this question, yes or no. 

I think many of us don’t want to allow intrusive telemarketing 

calls to consumers any more than many of you do. And we just 

want to make sure that you don’t have your cell phone being anVerDate Aug 31 2005 13:16 Aug 24, 2012 Jkt 037690 PO 00000 Frm 00137 Fmt 6633 Sfmt 6633 F:\112-10~4\112-10~1 WAYNE
132 

swered time and time again with a computerized call, telemarketing. 

Do you think there are ways we can clarify thatautodialers and 

prerecorded voice messages should not be used to make telemarketing calls to consumers? 

Ms. Schwartz? 

Ms.SCHWARTZ. Yes, we support that clarification, that you should 

not be subjected to telemarketing calls. 

Mr.STEARNS. So you think we can clarify and make that. OK. 

And Mr. Alterman? 

Mr.ALTERMAN. Absolutely, I agree. 

Mr.STEARNS. OK. 

Ms. Hand? 

Ms.HAND. Well, I think while there might be some clarifications 

that can be made, I would like to reiterate that current law currently allows contact with the consumer, and there is a very bright 

line here with respect to consent. 

Mr.STEARNS. So, technically, you think between autodialers and 

prerecorded voice messages we can make a clarification so that 

these don’t end up beingtelemarketing calls. Do you think we can 

do that? 

Ms.HAND. Yes, we can do that, but consumer consent should absolutely be preserved. 

Mr.STEARNS. And how would we do that? 

Ms.HAND. Well, I am happy to continue working with staff to 

work out the technical languages. But we just want to make sure 

that consumers have an absolute ability to opt out of receiving any 

prerecorded or—— 

Mr.STEARNS. BY CALLING THE FEDERAL TRADE COMMISSION ON A

TOLL-FREE NUMBER AND SAYING—— 

Ms.HAND. I am sorry? 

Mr.STEARNS. They could call the Federal Trade Commission and 

ask them to make sure that my number is not included in that? 

Is that one suggestion? 

Ms.HAND. Potentially. I mean, we would have to think about it, 

and we would have to work with staff. 

Mr.STEARNS. OK. 

Go ahead, Mr. Zoeller. Your comment? 

Mr.ZOELLER. I think the key would be as long as States were allowed to have additional restrictions. 

Mr. STEARNS. OK. 

Mr.ALTSCHUL. Prohibition on telemarketing calls has worked 

well and is broadly supported. 

Mr.STEARNS. OK. 

Ms. Hand, your testimony suggests that current law empowers 

a consumer to demand that incessant calls stop and that the proposed legislation removes that protection. 

Can you point to me specifically to where that protection exists 

today for, say, landline calls and what provision specifically eliminates that protection? 

Ms.HAND. Well, it is actually what is not included in the bill. 

And so, I refer to an FCC ruling, a 2008 ruling by the FCC in January of 2008, where the FCC recognizes—and the specific language, if I may just point to it—the FCC recognizes the right of 

133 

consumers to request calls to stop. And so, the FCC in the 2008 

ruling said that, absent instructions to the company, persons who 

knowingly release their phone numbers have, in effect, given an invitation or a permission to be called. So, in other words, consumers 

have the right to ask to stop receiving calls. 

The bill doesn’t address that, and so, in essence, there is no enforcement mechanism. If a consumer were to receive a robocall, 

they could ask to stop, but there currently would be no enforcement 

mechanism to stop those calls under the current language of H.R. 

3035. 

Mr.TERRY. Would the gentleman yield for one moment? 

Mr.STEARNS. Sure, I would be glad to. 

Mr.TERRY. Yes, that is a great point that you bring up and, Ms. 

Hand, you bring up, and Mr. Markey has brought it up. And that 

is one of the areas that we are willing to work on. 

Ms.HAND. Thank you. 

Mr.STEARNS. Ms. Hand, another question. Do you agree that consumers benefit from the informational calls discussed by Ms. 

Schwartz and Mr. Alterman? And how can the proposed legislation 

be modified to allow such calls without opening the door to 

harassing—and I think you have touched on that. 

But, Mr. Alterman and Ms. Schwartz, do you agree with what 

Ms. Hand is saying in this area of changing the legislation? 

Ms.SCHWARTZ. I think abusive and repetitive calls should not be 

permitted, just as they are already under protection on the FDCPA. 

But I think it is very important to be allowed, if you already have 

a business relationship, to alert people of opportunities to fix their 

loan before they go to foreclosure by a cell phone. 

Mr.STEARNS. OK. 

Mr. Alterman? 

Mr.ALTERMAN. Yes, let me make one thing perfectly clear: We do 

not want to make repetitive calls, and we would absolutely have no 

problem with language that would do that. 

I would like to make one comment, because a comment was made 

earlier that airlines already have the ability to notify people by 

this. And our industry, unfortunately, is one step removed. The 

phone numbers that are given are given to retailers, such as 

L.L.Bean. We get the phone numbers from them as part of the 

same transaction, but it is unclear—I could with a straight face 

argue that that constitutes consent, but it is unclear. 

And this bill would make it clear that—we would like this bill 

to make it clear that—that is all we want to do; we just want to 

tell someone there is a package ready. 

Mr.STEARNS. Thank you, Mr. Chairman. 

Mr.TERRY. Thank you. 

Mr. Doyle? 

Mr.DOYLE. Thank you, Mr. Chairman. 

As I said in my opening remarks, I think the bill was well-intentioned, but obviously I think we have a lot of work to do here. 

As I read this bill, if a person provides their phone number as 

a means of contact at any point during a business relationship with 

a company, then that constitutes prior express consent. 

I just bought a washer and dryer 2 weeks ago at an appliance 

store, and they wanted to give me, like, a 40-minute notice before 

134 

they were going to arrive at my house so that somebody would be 

there. And they asked me for my phone number, and I gave it to 

them. 

Now, I don’t ever want to hear from that appliance store anymore if they have TVs on sale or computers or whatnot, and I certainly don’t want to start getting text messages from that company. 

So I guess what I want to ask Ms. Schwartz and Mr. Alterman 

and Mr. Altschul is, why do you think the mere giving of a phone 

number in a business relationship, you know, like the example I 

have just cited, why do you think that should imply that I want 

to hear from those companies in the future? 

Ms.SCHWARTZ. Well, sir, that is an interesting analogy. I look at 

this completely from the mortgage experience. When you take out 

a 30-year mortgage and have a relationship with your bank or loan 

servicer, you should figure out the effective ways to communicate 

with each other. And if you don’t have a landline and you don’t 

communicate, you will go to foreclosure if you are not making your 

payments and you don’t have an opportunity to talk to your 

counterparty to understand all of the options available to avoid 

that. 

Mr.DOYLE. But isn’t it as simple as—you know, people want to 

know how can we do this. It is simple: Ask. I mean, why don’t you 

just—I mean, right now, TCPA and FCC rules allow people to say 

upfront, ‘‘I want you to be able to contact me.’’ And so it seems to 

me that, you know, your constituencies, you know, the mortgage 

business and whatever, you should just ask the consumer when 

you have that first contact with them, will you give us permission—or, do you give us permission to contact you if we have some 

information about our products or our services? And the person 

says, yes, I give you my permission. And I think that solves the 

problem. Just ask the consumer if they want to hear from people, 

and if the consumers say yes, case closed. 

But I have to tell you—and I especially worry about young people. Now, my kids, they can’t afford these high bundled plans, Mr. 

Altschul, so they have these prepaid phones. And they don’t talk 

on the phone anymore. If I want to talk to one of my kids, I have 

to text them or they don’t answer me back, OK? I can’t send emails 

or call their phone numbers; they just don’t respond. 

But I know the plans. It is like you have so many texts you are 

allowed for one price, and then it goes—you know, because we end 

up paying every time they go over their text messages and they call 

crying to us that they don’t have the money to pay their phone bill. 

The industry has already voluntarily said, you know, they are 

going to start notifying people when they are getting close to using 

up their plans so that they don’t have the sticker shock, you know, 

when their bill comes. I mean, imagine—— 

Mr.ALTSCHUL. We have done that on a free-to-the-end-user basis, 

by the way, so it won’t generate usage calls—— 

Mr.DOYLE. Exactly. But imagine the calls you are going to start 

to get when these young kids start to get these text messages from 

these telemarketers that they don’t want and it starts to run their 

bill up, either over their prepaid plan—and they are going to be 

calling your companies complaining, you know, that they owe all 

this money for calls that they don’t want to accept. 

135 

So, I mean, Lee, I think this is simple. I think we just ask consumers if they want to hear from these folks. And if they indicate 

they do—I know when I go online and order a product, there is always a box there that says, would you like to hear from us on any 

future sales our company has? And I get to check the box, and then 

I get emails from that company. 

But I am saying, to me, I think it is pretty straightforward. Just 

ask people if they want to hear from you, and if they say yes, then 

they want to hear from you. If they say no, they don’t want to hear 

from you, and don’t call them. And I think that would solve the 

problem. 

Mr.TERRY. We would appreciate working with you. 

Ms.SCHWARTZ. May I follow up with that, sir? 

Mr.DOYLE. Yes, sure. I have 40 seconds. 

Ms.SCHWARTZ. My only point is, when you buy a house 4 or 5 

years earlier and your life changes and you are not in contact—and 

there are millions of people who are not in contact on their home 

loan today who are in trouble. And so any effective tool to reach 

them and have an effective conversation and invite them to participate is a meaningful way to—— 

Mr.DOYLE. And I think if you would say to that consumer when 

they buy the house, if there is a situation where we could provide 

different options for you if you have financial trouble, would you 

like us to be able to tell you what those things are, people can 

make that choice. 

Thank you, Mr. Chairman. 

Mr.TERRY. Mr. Chairman? 

Mr.WALDEN. Well, thank you, Mr. Chairman. I appreciate your 

chairing this hearing and bringing this issue to our attention. Obviously, there are a lot of views on how you might get this done. And 

I know it is not your intent to open the door to random telemarketing calls. That is not what this is about. 

Mr.TERRY. No. 

Mr.WALDEN. I have found it interesting, though—and I have 

been in the back in some meetings but also trying to keep an ear 

to the testimony—that there does seem to be this persistent issue 

about the way technology has changed. There are now more cell 

phones than there are citizens of this country in use in this country. People are cutting their landlines, and there are some legacy 

rules here. 

Now, I don’t want random text messages from companies just to 

market to me. I don’t want random cell phone calls. But I did note 

when our colleague from Tennessee talked about just the nature of 

FedEx being able to automate the call that says, ‘‘We are going to 

deliver the package to your house,’’ I have encountered that where 

they call our landline but nobody is home, and so you get the call 

later and they couldn’t leave the package, so now I have to call 

them, trace them down, figure out where to go get it and go 

through this drill. If there were a way that they could have just 

called my cell phone, then I would know, OK, I can run back to 

the house, or whatever is my home life. 

And so I am trying to figure out, is there a way to thread this 

needle that we don’t open this door that I don’t think anybody on 

this committee wants to open, on sort of random telemarketing 

136 

calls to cell phones, but that allows that understanding of how 

technology has changed? Because if I understand this right, if there 

is a human dialing the number, that is OK. But if I pull it up on 

a computer screen and push a button, that is not OK. 

Now, I got to tell you—and I realize it is probably the race between gray and gone, the loss of memory, but I have trouble remembering people’s phone numbers anymore because I pull out one 

of these devices and right here are my favorite phone numbers and 

my friends, family, or staff, and I just push, you know, ‘‘Brian’’ or 

‘‘Ray’’ or whomever and it dials it automatically. 

Now, would that kind of a—is that an automatic dialer? It is not. 

Some of you say it is not; some say it is. Right? OK. 

Well somewhere, though, if I had to reach 30 people, I might 

have a system and basically say, call Bill, Ed, Ray, whoever is 

available, and I will talk to the first one you find. Is that the 

autodialer we are talking about here? So it is just—if they are all 

my friends or whatever. I don’t know. 

So I think there is a way to get at modernizing the law without 

opening the door to unwanted solicitations and informational calls 

and all that stuff. 

So, anyway, I would yield to the chairman. 

Mr.TERRY. All right, thank you. And I do think you hit on probably the ultimate point here. We focus on the technology change 

from wirelines to wireless, but the reality is the trap we are in is 

the technology of an operator dialing versus manually dialing 

versus clicking and having a computer program that would automatically dial, like, the school notices or all of that. 

So that is the technology that is hanging up the TCPA right now 

and is the good and the bad, and we have got to figure out how 

to draw that line. So I appreciate that. 

At this point, Mr. Barrow. 

Mr.BARROW. I yield my time to the gentleman from Massachusetts, Mr. Markey. 

Mr.MARKEY. I thank the gentleman very much. 

So I am the House author of the Telephone Consumer Protection 

Act of 1991, which is amended by this act. And I feel as strongly 

today as I did 20 years ago that consumers should not be subject 

to intrusive calls from telemarketers, whether they are at home or 

on their mobile phones. 

So we were looking, at that time, about people who were just 

ticked off that they were getting called just every night just around 

dinnertime. Just an amazing coincidence that they didn’t call at 

2:00 in the afternoon or 11:00 in the morning, but it was always 

just as people were sitting down to dinner, when parents were 

reading to their kids, when people were trying to unwind from a 

long day. And that is when everyone just started to call and the 

phone would just start ringing. 

So we banned autodialing and prerecorded calls to land lines and 

mobile phones, with certain exceptions. And we established the Do 

Not Call List, the law creating a zone of privacy that remains 

hugely popular with consumers to this day. 

So here is my question. Maybe, Ms. Hand or Attorney General, 

maybe you could help me with this. As we discuss this, let’s just 

say Members of Congress get home late from wherever they go, 

137 

OK, and they just start calling whatever their local takeout taxi is. 

And one day they are calling to have Italian food sent over; another 

day, Chinese, Ethiopian. Well, let’s just say, by the end of the year 

they have called 20 different restaurants to have takeout taxi bring 

it over—you know, pizza, whatever. 

Now, under this proposed change, what would the relationship 

now be between those 20 restaurants and you at home, in terms 

of their ability to call you with the good news that the pu pu platter is now on sale or, you know, the new eggplant parmesan? 

Would that now make it possible for them to call you with all the 

great news that each one of the 20 have, even though you wanted 

a one-time relationship with them on the cheese pizza or, you 

know, the Chinese or other food? 

So help me with that. What happens under this proposed change 

in terms of my relationship with the restaurants in the greater 

Boston area? 

Ms.HAND. Well, Mr. Markey, you raise a really good point. Under 

the language of the bill as it currently is, this would now qualify 

as an established business relationship. 

Mr.MARKEY. That one-time call? 

Ms.HAND. That one time. You have called, you have made a purchase, and you have provided contact information. This would suffice to be an established business relationship for the purpose of receiving robocalls on your cell phone. 

Mr.MARKEY. Is that correct? 

Mr.ZOELLER. Yes. And what I would like to point out is, in Indiana, we did not include a prior-business-relationship exception. So, 

in Indiana, you would not continue to get any other calls. They 

don’t have a prior-business-relationship exemption so you don’t 

get—when you are listed on our Do Not Call, you don’t get calls. 

Mr.MARKEY. Would that be a nightmare situation for families, 

where every night they get a call in a different language letting 

them know that their favorite food—— 

Mr.ZOELLER. Well, I can tell you, in Indiana, if you would have 

not allowed for that prior-business-relationship exemption in the 

original act, you would have been much more popular than you are 

today. 

Mr.MARKEY. Yes. Yes. 

So if you give over your phone number—so now it is just your 

phone number, you know, is handed over to someone just to even 

get information. Now, under this proposed change, would just 

handing over your phone number now create a pre-existing business relationship for all purposes, even though you might not have 

even purchased something? 

Mr.ZOELLER. Well, under the Federal statute. But, again, as long 

as we are not preempted, it would not create—because we don’t 

have the exemption in Indiana. If you preempt us, though, and we 

have to follow the Federal model, Indiana would get the 12, on average, calls per week that most people in the country do that have 

a Federal Do Not Call but not a tough law like we have in Indiana. 

Mr.MARKEY. So what is your answer to that, Ms. Schwartz? How 

do we protect it? You know, you want mortgage information because the individual’s largest single, you know, investment in their 

138 

lives could be at stake. But you hear all the other stuff that could 

now happen coming in under that exemption. 

So what would you do to protect against the tsunami of calls that 

would inundate people’s cell phones? And people would have to pay 

for the right to have the text or have the phone call coming into 

them because it is on their bill. 

Ms.SCHWARTZ. I am certainly not an expert on the breadth of the 

complex legal side of this, although it sounds like telemarketing to 

me. And I thought that was explicitly not—or that there was a protection against that in this bill. So I would thread the needle a little more closely to make sure that doesn’t happen. 

Mr.TERRY. Thank you, Mr. Markey. 

Mr.MARKEY. OK, that is great. Now, could I be recognized on my 

own time? I have been using—— 

Mr.SHIMKUS. Reserving the right to object. 

Mr.TERRY. Why don’t we come back? 

Mr.MARKEY. All right, I will wait for my turn to come back. 

Mr.TERRY. Mr. Shimkus? 

Mr.SHIMKUS. Thank you, Mr. Chairman. This has been a good 

panel and a great discussion because I think you can see where we 

are all trying to wrestle with this. 

Everyone has stories. I am from rural America. Propane is the 

heating fuel of choice. I have a constituent who dropped their 

landline. And the system was, with the propane industry, that 

when you would go low on propane, they would then dial you and 

say, hey, you are running low, you better fill up your propane. But 

since they dropped the landline, they couldn’t get notified. And so, 

in the middle of the night, they ran out of propane, and, you know, 

that was not a good time to run out of propane, in the middle of 

the night in mid-December. 

So I think we are talking about making consent easier, where we 

understand the business relationship more defined so that, as Michael Doyle said—and I am glad he finally got a washer and a 

dryer. I have been hoping he would buy one for the last 10 years 

here. But, as he said, we want to make sure we establish a business relationship—if there is a business relationship and they opt 

in and say, ‘‘We want to continue to have this communication,’’ 

then we need to have this. And these constituents of mine want the 

propane company to be able to call them on their cell phone if their 

propane is running low. And so, that is what this is about. 

I have two questions, but I want to go to the attorney general 

first, because his story in answer to a question is really encompassing, kind of, our debate here in Washington. 

And maybe you want to restate it. You said you were pretty well 

promised that the State of Indiana would have been left alone in 

your ability to deal with this. However, the courts got involved; is 

that right? Can you explain that real quickly again? 

Mr.ZOELLER. Well, the case of—I think the telemarketing companies had a client named the Patriotic Veterans Association, and 

they were wanting to blast out these robocalls to literally hundreds 

of thousands of people in Indiana because they had their numbers. 

They had given money to various charities over the years. They 

wanted to blast out these prerecorded phone calls. 

139 

And the court, looking at the language of the TCPA, recognized 

that, just as this bill does, says that it is not to be preempted for 

intrastate. Therefore, since they did not mention interstate, if they 

choose to use robocalling equipment outside of our domestic 

robocallers in Indiana, they are free to do so because the Federal 

Government, although well-intended by Mr. Markey and others, 

had opened up the door to preemption. 

Mr.SHIMKUS. Right. 

Mr.ZOELLER. So, after a decade of fighting us, they finally got a 

Federal judge to preempt our enforcement of our own statute. 

Mr.SHIMKUS. And that is a continuing debate we have here, 

about the unintended consequences. Going to the court and then 

changing the intent of the law, and then we have to come back and 

refine it. And that is a good thing to have on record on other issues 

that we debate here in Washington, D.C. And I enjoyed that—I will 

use that example in the future. 

Ms. Hand, Indiana’s law allows autodialed calls from schools to 

parents and does not distinguish between calls to landlines and 

calls to cell phones. Do you think Indiana’s law is unreasonable? 

Ms.HAND. Absolutely not. I think if the State legislature determines what is appropriate for its residents, that should hold and 

the State’s law should not be preempted. 

Mr.SHIMKUS. Yes. 

And my time is running and we have votes, so, Mr. Alterman, 

talk about the benefit of text messaging. I have young kids still. 

Texting is the communication mode now. It was emails, it was 

phones, now it is texting. So talk about the importance of text messages. 

Mr.ALTERMAN. I think that it is just—as things develop, as technology develops and the way our society develops, it is just becoming a more basic way of communicating. And some people like 

phones, some people like text messages. Text messages are a little 

less intrusive sometimes because nothing rings and you can answer 

them whenever. So it is becoming more of a way of contacting people. 

Mr.SHIMKUS. Although I think I woke up my son at 5:00 a.m. 

This morning because it vibrated. Kids sleep with their phones 

these days. 

So, anyway, thank you very much. 

I yield back, Mr. Chairman. 

Mr.TERRY. Thank you, Mr. Shimkus. 

And we do have votes on the floor, which is—timing is perfect. 

Mr. Barrow, I—well, I recognize Mr. Markey. 

Mr.MARKEY. I thank the Chair. 

So I guess what we all want is, kind of, some commonsense rule 

here that doesn’t have your phone ringing all night long, huh? 

Mr.TERRY. Agreed. 

Mr.MARKEY. And if, you know, looking back 20 years at all the 

changes that have taken place, you know, we might want to tweak 

it here or there, that is one thing. But I think people love the peace 

and quiet of their home. And I also think that, when you are talking about people’s new devices, since they have to pay for the right 

to have all of these communications—and it is a little bit of a safety zone for people right now. That is, the only people who know 

140 

your cell phone number are the people you give it to. You know, 

it is not in the phone book, it is not for everyone to know. And you 

can walk around not thinking that you are back at home, that this 

phone is going off 40 or 50 times because it is just some kind of 

public, you know, phone booth. 

So I think if we can work together to accomplish, kind of, the 

limited goals that people might have but not to open this thing 

wide but still to preserve for the attorney general and others the 

right to be able to give Hoosiers a little bit of additional protection 

if they would want to do so because of the independent nature of 

that State, that they just might want to give a little bit more protection to their consumers. And that is—— 

Mr.TERRY. Those are all things we would agree with, I would 

agree with. 

Mr.MARKEY. Beautiful. 

Mr.TERRY. So let’s work together. Appreciate that, Mr. Markey. 

And, Mr. Barrow, do you have any questions? 

Mr.BARROW. No, sir. I gave my time to Mr. Markey. 

Mr.TERRY. Yes, twice. 

So thank you all. I think it has been a very productive hearing 

and gives us a path forward, with your advice and counsel. 

So, at this time, we are now adjourned. 

[Whereupon, at 10:25 a.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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Æ 


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