U.S. Senator John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a full committee hearing titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business” on Wednesday, May 18, 2016, at 10:00 a.m.
The hearing will examine the Telephone Consumer Protection Act of 1991 (TCPA), an enacted bill that requires solicitors to maintain a “Do Not Call” list and limits the use of automatic dialing systems known as “robocalls.” The hearing will also examine the Federal Communications Commission’s application of the TCPA to new technologies and practices popularized since adoption of the Act.
- Ms. Becca Wahlquist, Snell and Wilmer, testifying on behalf of the U.S. Chamber Institute of Legal Reform
- Ms. Monica Desai, Squire Patton Boggs
- Mr. Rich Lovich, Law Offices of Stephenson, Acquisto & Coleman, testifying on behalf of the American Association of Healthcare Administrative Management
- Ms. Margot Saunders, Of Counsel, National Consumer Law Center
- The Honorable Greg Zoeller, Indiana Attorney General
* Witness list subject to change
Wednesday, May 18, 2016
10:00 a.m. ET
Full Committee Hearing
Senate Russell Building 253
Witness testimony, opening statements, and a livestream will be available on www.commerce.senate.gov.
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Chairman John Thune
"Good morning. Welcome to today’s hearing on the Telephone Consumer Protection Act (TCPA).
"When passing TCPA nearly 25 years ago, Congress expressly sought a balanced approach that “protects the privacy of individuals and permits legitimate telemarketing practices.”
"As a result of TCPA, a number of abusive and disruptive telemarketing practices have been significantly reduced or eliminated. For example, companies have to maintain “do-not-call” lists and cannot make solicitation calls before 8:00 a.m. or after 9:00 p.m.
"But, TCPA is also showing its age, and there are opportunities to build on its consumer benefits while also ensuring consumers fully benefit from modern communications. "Consumers should be able to take advantage of new technologies that help them avoid falling victim to unscrupulous actors and those callers who ignore “do not call” requirements. I doubt there is a person in this room who has not received a recorded voice on their mobile phone telling them they have won a cruise.
"We should also ensure that the FCC continues to take action against abusive and harassing practices, and has the tools it needs to bring bad actors to justice, including those operating from overseas. We recently took a step in this direction by unanimously approving Ranking Member Nelson and Senator Fischer’s anti-spoofing legislation as part of the FCC Reauthorization Act.
"But, our discussion today is not only about policing abusive and harassing practices and stopping bad actors. We must also acknowledge that most businesses are trying to do the right thing and play by the rules, and we need to understand whether TCPA is inadvertently hurting the good actors and consumers.
"When Congress passed TCPA, cell phones were uncommon and mobile telephone service was extremely expensive. It made sense to have particularly strict rules about contacting people on their mobile phones.
"Today, however, mobile phones are not only ubiquitous, they are actually smart devices that do much more than just send and receive phone calls.
"Consumer behavior is also far different today than in 1991. In fact, today’s consumer expectations about communications connectivity and the benefits of better contact with their doctors, schools, favorite charities, and – yes – even their lenders would be unrecognizable to Congress 25 years ago.
"More than 90 percent of Americans now have a mobile phone, and nearly half of all households in the United States are mobile-only. These percentages are even higher for young adults. Simply put, if you can’t reach these people on their mobile phones, you are going to have a hard time reaching them at all.
"The balance forged decades ago may now be missing the mark, and consumers may be missing the benefits of otherwise reasonable and legitimate business practices.
"The Federal Communications Commission (FCC) was tasked by Congress with assuring a balanced application of TCPA. The Commission, however, has struggled to apply TCPA to a changing communications marketplace, and the agency actually seems to be creating more imbalances and more uncertainty.
"The Commission’s rules have created new questions rather than answers.
"For example, what is an auto-dialer? The Commission will not answer that clearly, and instead only says it is something other than a rotary-dialed telephone.
"The FCC declared last year that it would not “address the exact contours of the ‘auto-dialer’ definition or seek to determine comprehensively each type of equipment that falls within that definition.” Hospitals, charities, utilities, banks, and restaurants should not have to engage engineers and telecommunications attorneys in order to know if they can call their customers without being sued.
"Another example is what to do if a customer’s number has been reassigned? While the FCC claims to have addressed this issue, companies say there is still no way to know with certainty. What is certain, however, is that if a phone number has been reassigned and you call it more than once, you could be liable for $500 per call, even if the new party never answers.
"TCPA litigation has also become a booming business. TCPA cases are the second most-filed type of case in federal courts, with 3,710 filed last year alone. That represents a 45 percent increase over 2014.
"And the companies affected by an unbalanced TCPA may surprise you. For example, Twitter stated the following in a filing at the FCC:
“As a result of this hyper-litigious environment, innovative companies increasingly must choose between denying consumers information that they have requested or being targeted by TCPA plaintiffs’ attorneys filing shake-down suits. No company should be put to such a choice.”
"The cost of getting the balance wrong isn’t just burdensome litigation, it is also the cost to consumers—and to the economy—of the important consumer contact that is not being made for fear of running afoul of an ill-defined rule:
"Text messages to let parents know about weather-related cancellations; calls to let struggling low-income households know how to keep the heat from getting cut off; calls to alert borrowers that they are at risk of defaulting on their debts and ruining their credit ratings; and follow-up calls to patients to make sure they understand their post-discharge treatment plans.
"Another specific matter that will be discussed today is the Obama Administration’s carve out to allow robocalls to mobile phones to collect debts owed to or guaranteed by the federal government.
"The Administration used last year’s must-pass Bipartisan Budget Act as a vehicle to achieve its robocall carve out. The Committee reached out to the Office of Management and Budget, the Department of the Treasury, and the Department of Education to testify about why the Administration has prioritized this robocall carve-out for years. Unfortunately, the Obama Administration is not represented before us today, but we will continue to seek its input as its robocall carve-out is implemented by the FCC and as the Committee continues its oversight of TCPA.
"Ultimately, finding the right balance is essential to protecting the privacy of consumers while making sure they have reasonable access to the information they want and need, and making sure good faith business actors can reasonably assess the cost of doing business.
"We have a variety of perspectives with the panel before us and I look forward to hearing your testimony and appreciate your participation today."
Mr. Chairman, today we’re going to hear a lot about the Telephone Consumer Protection Act – and what some say needs to be changed about that law.
This law is one of the preeminent and most loved consumer protection statutes we have. And protecting consumers will be my focus here today.
There are few things that unite Americans more than their visceral dislike of robocalls.
Go anywhere in this country and ask the average consumer: Do you want to receive more unwanted robocalls? How about more robocalls on your mobile phone?
You may just get a mobile phone thrown at you.
In fact, I’m quite sure most folks would love to give unwanted telemarketers a taste of their own medicine, if given the chance.
I know that I do not want any more robocalls – especially on my cell phone.
It is a sentiment that nearly all of us share. That is why, for the past 25 years, our nation’s laws have sided firmly with consumers on this issue.
And it’s no wonder.
The number of consumer complaints about robocalls continues to increase. The FCC receives tens of thousands of robocall complaints per month. The FTC receives hundreds of thousands per month.
And we all have stories close to home.
One of my staff members signed up for land line service one morning, and by the afternoon – before he had even given his new number to family and friends – his phone was being flooded by robocalls. He soon gave up the land line.
In fact, many of my friends have abandoned their land line phones for wireless only phones, in part, in order to escape the incessant robocalls.
For most of us, our cell phone is our lifeline and our haven. If we allow those annoying robocalls to begin freely bombarding folks’ mobile phones, where do those people go to escape the harassment?
What happens when people start to ignore calls to their mobile phones from unknown numbers so they don’t have to hear another recording, only to miss an important call about a loved one or friend?
What about elderly and low-income Americans? Many of these consumers still subscribe to cell phone calling plans that are restricted in the number of minutes they can use per month.
Opening the flood gates to wireless robocalls to those individuals would have an immediate adverse impact, jeopardizing the lifeline those phones represent.
What about trying to drive down the road with your mobile phone ringing incessantly with robocalls? Talk about distracted driving. And where would it all end?
Let me, of course, acknowledge that much of Americans’ frustration with robocalls are because of fraudulent callers. Scammers will always be a problem. That’s why, for example, Senator Fischer and I teamed up on our bill to combat spoofing. That’s why I also would like to see a revamped and improved Do-Not-Call list.
At the same time, I appreciate that there are legitimate business – or other – reasons to call consumers on their wireless phones.
But there is already an answer to that – just get the consumer’s consent first as businesses have been able to do since the law was passed in 1991.
In the bubble of Washington, policy makers are often in danger of losing sight of what is in the actual best interests of consumers.
But make no mistake: outside this hearing room, outside the corporate boardrooms, outside the offices of defense counsel or debt collectors, the idea of allowing greater access for robocalls to consumers’ cell phones without their consent is an idea that is dead on arrival with the American people.
I want to welcome our panel for appearing before us today and look forward to your testimony.
Ms. Becca WahlquistSnell and WilmerTestifying on behalf of the U.S. Chamber Institute of Legal Reform
Ms. Monica DesaiSquire Paton Boggs
Mr. Rich LovichLaw Offices of Stephenson, Acquisto & ColemanTestifying on behalf of the American Association of Healthcare Administrative Management
Ms. Margot SaundersOf CounselNational Consumer Law Center
The Honorable Greg ZoellerIndiana Attorney General